Kerala High Court
R. Baiju vs State Of Kerala on 2 August, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
DSR NO. 4 OF 2018
AGAINST THE JUDGMENT DATED 21.04.2018 IN SC NO.528 OF
2011 ON THE FILE OF THE ADDITIONAL SESSIONS COURT - III,
ALAPPUZHA
PETITIONER:
STATE REPRESENTED BY THE CIRCLE INSPECTOR OF
POLICE, CHERTHALA POLICE STATION, CRIME NO.
1010/2009.
SRI.E.C.BINEESH P.P.
RESPONDENT:
R.BAIJU
KAKKAPARAMBATHUVELI VEEDU,
NORTH OF KIZHAKKETHAZHATHU SERVICE CO-OPERATIVE
SOCIETY, CHERTHALA MUNICIPAL WARD NO.31.
SRI.S.SANAL KUMAR (SR.)
THIS DEATH SENTENCE REFERENCE HAVING BEEN HEARD ON
27.06.2024 ALONG WITH CRL.A.648/2018, 791/2018 AND
CONNECTED CASES, THE COURT ON 02.08.2024 DELIVERED THE
FOLLOWING:
D.S.R.No.4 of 2018 & con. cases
-: 2 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
CRL.A NO. 648 OF 2018
AGAINST THE JUDGMENT DATED 21.04.2018 IN SC NO.528 OF
2011 ON THE FILE OF THE ADDITIONAL SESSIONS COURT - III,
ALAPPUZHA
APPELLANT/ACCUSED NO.5:
SETHU @ SETHUKUMAR
AGED 40 YEARS, D/O.NAGAPPAN, DRIVER,
CHOOLACKAL HOUSE, WARD NO.32,
CHERTHALA MUNICIPALITY, CHERTHALA.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SRI.T.ANIL KUMAR
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.THOMAS SABU VADAKEKUT
SRI.E.VIJIN KARTHIK
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM-682031.
SRI.E.C.BINEESH P.P.
THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 27.06.2024
ALONG WITH DSR.4/2018 AND CONNECTED CASES, THE COURT ON
02.08.2024 DELIVERED THE FOLLOWING:
D.S.R.No.4 of 2018 & con. cases
-: 3 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
CRL.A NO. 791 OF 2018
AGAINST THE JUDGMENT DATED 21.04.2018 IN SC NO.528 OF
2011 ON THE FILE OF THE ADDITIONAL SESSIONS COURT - III,
ALAPPUZHA
APPELLANTS/ACCUSED NOS.1 TO 4:
1 MANJU @ SUJITH,
S/O.VIJAYAN, CHEPPILAPOZHY VEEDU,
(NEAR KUTTIKADU JUNCTION),
CHERTHALA MUNICIPAL WARD NO.32, CHERTHALA.
2 KANNAN @ SATHEESHKUMAR
S/O.SADANANDAN, KODANATTU VEEDU,
(NEAR KUTTIKADU JUNCTION), CHERTHALA MUNICIPAL
WARD NO.32, CHERTHALA.
3 PRAVEEN
S/O.PRAKASAN, CHEPPILAPOZHY VEEDU,
(NEAR KUTTIKADU JUNCTION), CHERTHALA MUNICIPAL
WARD NO.32, CHERTHALA.
4 BENNY
S/O.MANIYAPPAN, VAVALLIYIL VEEDU, CHERTHALA
MUNICIPAL WARD NO.31, CHERTHALA.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
VISHNUPRASAD NAIR
SRI.T.A.SHAJI (SR.)
SRI.P.M.RAFIQ
SRI.ATHUL SHAJI
SRI.S.ABHILASH VISHNU
SRI.V.C.SARATH
SRI.M.REVIKRISHNAN
D.S.R.No.4 of 2018 & con. cases
-: 4 :-
SRI.AJEESH K.SASI
SRI.VIPIN NARAYAN
SRI.THOMAS J.ANAKKALLUNKAL
SRUTHY N. BHAT
SRUTHY K K
RAHUL SUNIL(K/000608/2017)
NIKITA J. MENDEZ(K/2364/2022)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM, (REPRESENTING THE CIRCLE
INSPECTOR OF POLICE, CHERTHALA POLICE STATION,
ALAPPUZHA DISTRICT).
SRI.E.C.BINEESH P.P.
THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 27.06.2024
ALONG WITH DSR.4/2018 AND CONNECTED CASES, THE COURT ON
02.08.2024 DELIVERED THE FOLLOWING:
D.S.R.No.4 of 2018 & con. cases
-: 5 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
CRL.A NO. 836 OF 2018
AGAINST THE JUDGMENT DATED 21.04.2018 IN SC NO.528 OF
2011 ON THE FILE OF THE ADDITIONAL SESSIONS COURT - III,
ALAPPUZHA.
APPELLANT/ACCUSED NO.6:
R. BAIJU
AGED 43 YEARS, S/O. RAMANAN,
KAKKAPARABATHUVELI HOUSE, CHERTHALA,
ALAPPUZHA DISTRICT.
BY ADVS.
SRI.SANAL KUMAR (SR.)
SRI.M.R.ARUNKUMAR
SMT.BHAVANA VELAYUDHAN
SMT.T.J.SEEMA
RESPONDENT/STATE & COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
SRI.E.C.BINEESH P.P.
THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 27.06.2024
ALONG WITH DSR.4/2018 AND CONNECTED CASES, THE COURT ON
02.08.2024 DELIVERED THE FOLLOWING:
D.S.R.No.4 of 2018 & con. cases
-: 6 :-
C.R.
P.B.SURESH KUMAR & M.B.SNEHALATHA, JJ.
-----------------------------------------------
D.S.R.No.4 of 2018
&
Crl.Appeal Nos.648, 791 and 836 of 2018
-----------------------------------------------
Dated this the 2nd day of August, 2024
JUDGMENT
P.B.Suresh Kumar, J.
The above Death Sentence Reference and the
Criminal Appeals arise from S.C.No.528 of 2011 on the files of
the Court of the Additional Sessions Judge-III, Alappuzha. There
are altogether six accused in the case and among them,
accused 1 to 5 stand convicted for offences punishable under
Sections 143, 147, 148, 323, 324, 427, 449 and 302 read with
Sections 149 and 120B of the Indian Penal Code (IPC) and the
sixth accused stands convicted for the said offences, except
the offence punishable under Section 148 IPC. Accused 1 to 5
D.S.R.No.4 of 2018 & con. cases
are sentenced, among others, for imprisonment for life and the
sixth accused is sentenced, among others, to death. DSR is the
proceedings initiated by this Court for confirmation of the death
sentence of the sixth accused and the Criminal Appeals are
preferred by the accused challenging their conviction and
sentence in the case. Among the appeals, Crl.A.No.791 of 2018
is preferred by accused 1 to 4, Crl.A.No.648 of 2018 is preferred
by the fifth accused and Crl.A.No.836 of 2018 is preferred by
the sixth accused.
2. An occurrence took place on 29.11.2009 in
which one Divakaran died and two others injured, is the subject
matter of the case. Divakaran was an activist of the political
party "Indian National Congress". He was also an office bearer
of the said party for sometime. A group of activists of the
political party "CPI(M)" trespassed into the courtyard of the
house of Divakaran; attacked Divakaran and the members of
his family and vandalised his house. The neighbours of
Divakaran took him and the others who sustained injuries in the
occurrence to the Taluk Hospital, Cherthala. As the condition of
Divakaran was serious, he was referred to the Medical College
D.S.R.No.4 of 2018 & con. cases
Hospital, Kottayam while the others were treated in the former
hospital. Divakaran succumbed to the injuries while undergoing
treatment at the Medical College Hospital, Kottayam on
08.12.2009.
3. A case was registered by Cherthala Police on
the date of occurrence itself at 9:30 p.m. on a statement
recorded from the daughter-in-law of Divakaran, Reshmi while
she was undergoing treatment for the injuries sustained by her
in the occurrence at the Taluk Hospital, Cherthala. The Circle
Inspector of Police, Cherthala was in charge of the investigation
in the case. Even though it was disclosed in the First
Information Statement that the assailants were a group of four
to five persons, the investigating officer maintained the stand
from the very inception that the assailants were only a group of
four persons. Consequently, the investigation in the case was
confined only to the roles played in the occurrence by those
four persons. That apart, it was stated in the First Information
Statement that they were attacked since they refused to
purchase the coir mats brought for sale from Kudumbasree on
the same day afternoon. Despite the said statement, there was
D.S.R.No.4 of 2018 & con. cases
no investigation about the persons involved in the sale of coir
mats nor have they been arrayed as accused in the case, even
though the Investigating Officer did not find any other reason
for the four assailants who were found to be involved in the
occurrence to attack the house of the deceased and caused
injures to the inmates in the house.
4. While the investigation in the case was
progressing, on 19.12.2009, the Circle Inspector of Police,
Mararikkulam was put in charge of the investigation. The said
officer, having felt that the officer who conducted the
investigation till then was biased in favour of some of the
accused and had not recorded the statements of the witnesses
including the injured persons truly and correctly, made a
request to the Chief Judicial Magistrate, Alappuzha, for
recording the statements of the close relatives of the deceased
who were present at the scene at the time of occurrence, under
Section 164 of the Code of Criminal Procedure (Code). On the
basis of the said request, the statements of the daughter-in-
law, son and wife of the deceased were recorded under Section
164 of the Code on 07.01.2010. Later, based on the said
D.S.R.No.4 of 2018 & con. cases
statements, the son of a local leader of the political party
CPI(M) and a Municipal Councillor and the then Chairman of the
Cherthala Municipal Standing Committee, were arrayed as
accused 5 and 6 in the case. Later, after investigation, final
report was filed in the case against all the accused alleging
commission of various offences.
5. The allegation against the accused in the final
report is that a criminal conspiracy was hatched at about 7
p.m. on 29.11.2009 among accused 1 to 6 at the courtyard of
the house of the fifth accused to assault the son of the
deceased and to commit murder of the deceased who were on
inimical terms with them, and in pursuance to that criminal
conspiracy, on the same day at about 7.30 p.m., accused 1 to 6
formed themselves into an unlawful assembly armed with
deadly weapons, and in prosecution of their common object,
criminally trespassed into the house of the deceased and
attacked the deceased, his son Dileep and daughter-in-law,
Rashmi and vandalised the house as also the movables therein.
It was specifically alleged in the final report that the first
accused attacked the son of Divakaran with a wooden log and
D.S.R.No.4 of 2018 & con. cases
thereby caused injuries on his left shoulder and right side of his
face and when Divakaran tried to intervene, the first accused
attacked Divakaran also with the same wooden log at the back
of his head and further that when Divakaran bent on account of
the impact of the attack, the second accused inflicted a blow on
the front of the head of Divakaran with a similar wooden log. It
was also alleged that when Reshmi, the daughter-in-law of the
deceased attempted to catch hold of Divakaran who was
fainting down then, the first accused attacked Reshmi also
using the same wooden log and thereby caused an injury on
her right shoulder. It was further alleged that in the meanwhile,
accused 3, 4 and 5 have destroyed the window glasses, doors,
electric bulbs etc. of the house as also sewing machine,
refrigerator and other movables kept therein.
6. On the accused being committed to trial, the
Court of Session framed charges against them for offences
punishable under Sections 143, 147, 148, 449, 323, 324, 427,
and 302 read with Sections 149 and 120B IPC. When the
charges were read over and explained to the accused, the
accused denied the same and pleaded not guilty. The
D.S.R.No.4 of 2018 & con. cases
prosecution, thereupon, examined 21 witnesses as PWs 1 to 21
and proved through them 29 documents as Exts.P1 to P29. MOs
I to VIII are the material objects identified by the witnesses.
Exts.D1, D3, D4, and D6 to D15 are portions of statements of
PWs 1 to 3 recorded under Section 161 of the Code and Exts.D2
and D5 are portions of the First Information Statement of PW1.
After closing the evidence, when the circumstances appearing
against the accused in the evidence of the prosecution were
put to the accused, they maintained that they are innocent.
According to the accused, Divakaran and members of his family
suffered injuries in the group clash occurred in front of their
house on the date of occurrence. As the court did not find the
case to be one fit for acquittal in terms of Section 232 of the
Code, the accused were called upon to enter on their defence,
and at that stage, the accused examined a witness as DW1.
Thereupon, on an elaborate consideration of the evidence on
record, the Court of Session found the accused guilty of the
charges, convicted and sentenced them, as stated in the
opening paragraph of this judgment. The accused are deeply
aggrieved by their conviction and sentence.
D.S.R.No.4 of 2018 & con. cases
7. Heard Sri. P.Vijaya Bhanu, Sri.B.Raman Pillai
and Sri.S.Sanal Kumar, the learned Senior Counsel appearing
for accused 1, 5 and 6 respectively, Sri. Vishnuprasad Nair, the
learned counsel for the second accused and Sri.Anwin John
Antony, the learned counsel appearing for accused 3 and 4.
Sri. E.C.Bineesh, the learned Special Public Prosecutor has also
made elaborate arguments.
8. Elaborate arguments have been addressed by
the learned counsel for the accused. As we propose to deal with
the arguments advanced by the learned counsel in the
succeeding paragraphs, it is suffice at this stage to state that
the attempt made by all the learned counsel was to establish
that the complicity of the accused in the crime has not been
satisfactorily proved in the case, for the ocular evidence of the
close relatives of the deceased were full of embellishments,
contradictions and omissions. Per contra, the learned Public
Prosecutor asserted that the evidence of the ocular witnesses
which includes the injured are very much reliable, the same
have been fully and completely corroborated by other evidence
D.S.R.No.4 of 2018 & con. cases
let in by the prosecution and therefore, the impugned judgment
does not warrant interference.
9. Having heard the learned counsel for the
parties on either side, the following points are formulated for
decision;
(i) whether the prosecution has established
the occurrence involving all the six accused as alleged
by the prosecution;
(ii) whether the prosecution has established that
accused 1 to 6 hatched a criminal conspiracy to
assault the son of the deceased and commit murder of
the deceased and if so, the object of the conspiracy;
and
(iii) the offences, if any, committed by the
accused and the sentence to be imposed on them.
10. Point (i): In order to adjudicate the point, it is
necessary to refer to the evidence let in by the prosecution.
PW1 is the daughter-in-law of the deceased. She is one among
the persons who suffered injuries in the occurrence. It is based
on the statement recorded from PW1 that the case was
registered. Ext.P1 is the statement recorded from PW1. The
D.S.R.No.4 of 2018 & con. cases
version of PW1 as regards the occurrence was that on the
relevant day, at about 7.00 p.m., accused 2 and 4 called out
the name of PW2 from outside the house and PW2, instead of
going outside the house, invited them inside the house; that
accused 1 and 4 then came inside the house and when she
turned towards PW2 hearing the noise of them beating him, she
saw the sixth accused outside her house and exhorting that
"അവന ന ന അട ച ന ന ട ". It was also deposed by PW1
that on hearing the said exhortation, a few persons who were
standing outside the house also barged into the house and beat
PW2, and when she attempted to ward off the attack on PW2,
the assailants attacked her also. It was her version that PW2
then went inside the next room and closed the door from inside
and the first accused then started banging on the door of that
room with a wooden log. It was also deposed by PW1 that in
the meanwhile, the third accused caught hold of her two year
old child, and PW3, the wife of deceased then intervened and
took away the child from the third accused. It was the version
of PW1 that the deceased who was then watching television in
the adjoining room, came to the hall on hearing the noise and
D.S.R.No.4 of 2018 & con. cases
the first accused then beat the deceased on his head using the
wooden log carried by him and the blow fell on the right back of
his head. It was also deposed by PW1 that the first accused
thereupon beat on the head of the deceased two more times
with MOI wooden log. It was also deposed by PW1 that in the
meanwhile, the other accused who were present inside the
house namely accused 2 to 4 also beat the deceased on his
back as also on his leg. It was the version of PW1 that when the
deceased sat down then by keeping his hand on his head on
account of the beating, she rushed towards him to hold him
and the first accused then beat her also on her right shoulder. It
was also deposed by PW1 that she heard a loud exhortation
from outside the house then and immediately thereupon, the
fifth accused barged into the house and gave a kick on the
abdomen of the deceased. It was also deposed by PW1 that in
the meanwhile, the accused who remained inside the house
damaged the movables therein and also broke the electrical
fittings. PW1 identified MOIII as the wooden log used by the
second accused to beat the deceased and others. It was
clarified by PW1 that even though she signed Ext.P1 statement
D.S.R.No.4 of 2018 & con. cases
prepared by the police on the night of the same day at the
Taluk Hospital, Cherthala, she could not read it before affixing
her signature, as the police officer who recorded the statement
was in a hurry to go to the Medical College Hospital, Kottayam
to which hospital the deceased was referred to from Taluk
Hospital, Cherthala. It was also deposed by PW1 that since the
police did not initially array the sixth accused as an accused in
the case, PWs 1 and 2 complained to the Investigating Officer.
In cross-examination, PW1 deposed that the fifth accused who
is residing within 500 meters of her house is the husband of
one of her friends and she knew his name even before the
occurrence. Similarly, it was deposed by PW1 in her cross-
examination that she knew the third accused as the person who
was engaged for unloading stones in her house and the fourth
accused as the person who usually stands at the place called
Kuttikkadu junction. It was also deposed by PW1 in cross-
examination that accused 2 to 4 were among the persons
engaged for the concrete work of their house. It was clarified by
PW1 that it was since the sixth accused was not arrested, PWs
1 and 2 realized that he was not arrayed as an accused in the
D.S.R.No.4 of 2018 & con. cases
case and it is in that background that they applied for and
obtained the certified copies of the statement given by them
and approached the Magistrate for recording their statements.
It was also clarified by PW1 that even though what was
recorded in Ext.P1 were statements given by her, all the
statements given by her were not seen recorded therein. PW1
also asserted that the investigating officer had not read over to
her the statements recorded from her.
11. PW2 is the husband of PW1 and the son of the
deceased. PW2 deposed that on the afternoon of the relevant
day, accused 5 and 6 came to their house with one Chellappan
for the sale of coir mats; that PW2 directed them to meet the
deceased who was sitting, at the relevant time, at the front side
of the house; that when they required the deceased to
purchase a coir mat from them, the deceased took the stand
that he does not require a coir mat as he is already in
possession of a few coir mats; that the sixth accused then
insisted that the deceased shall purchase one coir mat from
them and when the deceased communicated to the sixth
accused his firm stand that he will not purchase a coir mat from
D.S.R.No.4 of 2018 & con. cases
them, the sixth accused reacted to the deceased stating
"ത വവണഎങ ൽഅത തച ള" and threw a coir mat in
front of him. PW2 identified MOVI as the said coir mat. It was
also deposed by PW2 that the said incident caused agony to
the deceased and consequently, the deceased directed PW2 to
raise a query in the Ward Council Meeting scheduled on that
day about the compulsory sale of coir mats. It was deposed by
PW2 that accordingly, he ascertained from the official of the
Municipality, who was present in the Ward Council Meeting,
whether the compulsory sale of coir mats made by the sixth
accused and others was with the concurrence of the
Municipality and the query of PW2 was answered immediately
by the sixth accused who was present there, in an arrogant
manner stating that if he does not require the coir mat, he can
set it ablaze. As regards the occurrence, the version of PW2
was that at about 7 p.m. on the relevant day, when he opened
the door of the house on hearing his name being called out by
someone from outside, he saw accused 2 and 4 standing there
and when they required him to come out of the house, he
invited them inside and proceeded back, on the assumption
D.S.R.No.4 of 2018 & con. cases
that they would follow him. It was also deposed by PW2 that he
noticed then through the door of the kitchen which was kept
open, the shadow of a person on the side of the kitchen and as
he sensed something wrong, he turned back and whilst so, he
saw then the first accused attempting to beat him using a
wooden log and when he turned his face then towards the left,
the hit fell on his shoulder and cheek. PW2 deposed that he
then heard an exhortation "അട ച ന ന ട അവന ". PW2
identified MOI as the wooden log used by the first accused to
beat him. It was deposed by PW2 that by the time he got into a
room and attempted to close the room in order to escape from
the attack, the first accused banged on the door and as a
result, a portion of the door broke and fell down. PW2 identified
MOII as the said portion of the door. PW2 also deposed that the
deceased came to the main room of the house by the time on
hearing the noise and the first accused then beat the deceased
using a wooden log repeatedly. It was deposed by PW2 that the
deceased then sat on the floor keeping his hand on the head,
and by the time, the second accused also hit him. It was also
deposed by PW2 that in the meanwhile, the assailants
D.S.R.No.4 of 2018 & con. cases
destroyed the furniture and other utensils in the house as also
damaged the window glasses. PW2 identified MOIV series as
the portions of furniture destroyed by the assailants. It was also
deposed by PW2 that by the time, their neighbours rushed into
their house on hearing the noise and the third accused then left
the house after shattering a tube light and after brandishing
the wooden log carried by him on those who had come to the
house and the remaining accused followed him. PW2 also
identified MOIII as the wooden log with which the second
accused beat him and others. It was also deposed by PW2 that
while the accused were leaving the house, they destroyed the
outer windows as well and created noise by banging on the
gate of the house. PW2 identified MOV series as the destroyed
glasses of the windows. In cross-examination, to a specific
question as to how he could see the sequence of events that
took place in the house from inside the closed room, his answer
was that he saw the sequence of events through the gap of the
door from which MOII portion broke and fell down.
12. PW3 is the mother of PW2 and the wife of the
deceased. As regards the occurrence, she corroborated
D.S.R.No.4 of 2018 & con. cases
substantially the evidence tendered by PWs 1 and 2. PW3 also
deposed that while some of the accused were attacking the
deceased, PWs 1 and 2 from inside the house, there were two
persons outside the house and one among them, all of a
sudden barged into the house from the western side and after
giving a kick to the deceased, went outside the house. It was
specifically deposed by PW3 that it was the fifth accused who
gave a kick to the deceased. It was also deposed by PW3 that it
was thereafter that the fifth accused destroyed the windows of
the house. PW3 also gave evidence as regards the destruction
of the various movables such as sewing machine, refrigerator
etc. made by the accused in the house as also the destruction
of the windows. It was clarified by PW3 later that the accused
flipped the cot and destroyed the tubelight on the southern
side of the house. It was also asserted by PW3 that at that
time, she saw the sixth accused standing on the northern side
of her house and the accused left the house after leaving the
wooden logs in the car porch of the house.
13. PW4 is a person who is residing in the
immediate north of the house of the deceased. PW4 deposed
D.S.R.No.4 of 2018 & con. cases
that at about 7 p.m. on the date of occurrence, when she
rushed to the house of the deceased on hearing hue and cry
from there, she understood that somebody beat the deceased
as also PWs 2 and 3 and destroyed their house and she saw
there at that time the first accused in a yellow t-shirt. Since
PW4 did not give evidence consistent with the case of the
prosecution, the Public Prosecutor was permitted to put
questions to PW4 as provided for under Section 154 of the
Indian Evidence Act and on such questions being put to PW4,
she admitted that when the accused destroyed the movables
inside the house of the deceased, there was a loud noise and
nobody dared to go to that place then. Since PW4 did not
identify the accused as the persons who attacked the deceased
and the injured, the suggestion made to her by the learned
Public Prosecutor was that she did not identify the accused as
the persons who attacked the deceased and the injured on
account of the influence of the accused, she denied the
suggestion and stated that she did not identify the accused out
of fear. The relevant portion of the evidence reads thus:
D.S.R.No.4 of 2018 & con. cases
"ഞ ൻ പ ത ള നട സ ധ തൽ അവന ത ചറ ൻ
ഴ എന റഞത . അവന വ ടചണ ത ചറ ൻ
ഴ എന റഞത."
In cross-examination, PW4 clarified that the sixth accused went
to the house of the deceased for the sale of coir mat on the
afternoon of the relevant day. It was also clarified by PW4 in
cross-examination that when she reached the house of the
deceased on hearing the hue and cry, she saw the deceased
falling down and that it was while the deceased was lying down
that the first accused beat him on his head.
14. PW5 is another neighbour of the deceased who
participated in the Ward Council Meeting held on 29.11.2009,
and she deposed that there were arguments in the Ward
Council Meeting held on that day between PW2 and the sixth
accused over the sale of coir mat and in the course of the
arguments, the sixth accused told PW2 to set ablaze the coir
mat if he does not want it. PW6 is another neighbour of the
deceased who rushed to the house of the deceased on hearing
the hue and cry from there and PW6 deposed that at that time
he saw accused 1 and 2 standing outside the house of the
D.S.R.No.4 of 2018 & con. cases
deceased and accused 3 and 4 smashing the windows of the
house. It was also deposed by PW6 that when he entered inside
the house, he saw the deceased vomiting and there were
indications of a paralytic attack on his face and PW2 was
standing by the side of the deceased with blood on his body. It
was also deposed by PW6 that it was he who took the deceased
to the hospital. In cross-examination, PW6 deposed that as the
house of the deceased was being constructed then, there were
wooden logs at the house of the deceased.
15. PW7 is a person residing near the house of the
fifth accused. PW7 is the witness to Ext.P2 inquest. PW7
deposed that on the day on which the house of the deceased
was attacked, his mother was in the Taluk Hospital, Cherthala
and at about 7 p.m. on the said day, while he was proceeding
to the hospital with food for his mother, he saw all the six
accused standing in front of the house of the fifth accused. It
was also deposed by PW7 that the second accused then asked
him where he was going and PW7 replied that he was going to
the hospital. It was also deposed by PW7 that when he turned
back after proceeding a little further, he noticed that they were
D.S.R.No.4 of 2018 & con. cases
discussing something. It was also deposed by PW7 that while
he was in the hospital, he heard a noise near the casualty and
when he went there, he saw the deceased lying unconscious. It
was also deposed by PW7 that he informed PW2 at the hospital
itself that he saw the accused together in front of the house of
the fifth accused and that he informed the said fact to PW3 also
on the following day. In cross-examination, PW7 stated that he
belongs to the political party, BJP and that he was an accused
in a few cases including a case registered at the instance of the
sixth accused. It was also clarified by PW7 that the case
registered against him at the instance of the sixth accused was
settled between them.
16. PW10 was the Assistant Professor of Forensic
Medicine attached to the Medical College Hospital, Kottayam at
the time of occurrence. It was PW10 who conducted the post-
mortem examination on the body of the deceased. Ext.P5 is the
post-mortem certificate. Ante-mortem injuries 1 to 8 noticed by
PW10 at the time of the post-mortem examination read thus:
1. 'G' shaped surgical stapled craniotomy wound (with
adherent edges 28 cm. long involving right fronto parieto-
temporal region, its front lower end, 2.5cm. above eyebrow
D.S.R.No.4 of 2018 & con. cases
and 2 cm. outer to midline and back lower end in front of
tragus of ear.
On dissection, the scalp showed contusion 10x8x1cm.
involving the frontoparietal region, and temporalis muscles on
either side. The left parieto occipital region showed contusion
9.5x8x1cm.
A circular piece of right tempero parietal bone of diameter
5.5cm. was seen raised, underneath, dura was incised and
duroplasty was seen done. Brain showed contusion 5x3x1cm.
involving the right temporal and 3x2x1cm, involving the left
temporal lobe were subdural clots adherent to frontal and
temporal lobes of brain. Brain showed flattened gyri and
narrowed sulci with softening around it. (Surgically modified
wound). Scalp contusion and intracranian haemorrhages were
dark red in colour.
2. Abrasion 0.5x0.5cm. on the left side of back of head 1.5cm,
outer to midline and 11cm, above root of neck.
3. Abrasion 3.45x2cm. involving the back of head, over
occiput, 11cm. above root of neck.
4. Multiple small healing abrasions (covered with brown easily
removable scab) over an area 2x1cm, on the left side of front
of neck, 3cm. outer to midline and 2 cm, above collar bone.
5. Abrasions 0.7x0.3cm. on the right side of front of neck,
3cm, outer to midline and 2cm. above collar bone (covered
with brown easily removable scab).
6. Contusion 1x0.5cm. skin deep on the left side of lower lip
0.5cm, outer to midline, corresponding to incisor tooth.
7. Linear contused abrasion 17x1-3cm. oblique on the right
side of back of chest, its upper extent 9 cm. below top of
shoulder and 12cm, outer to midline. (The contused abrasions
were healing and hypopigmented at places).
8. Healing abrasion (covered with brownish scab) 2x1cm. on
right side of front of abdomen, 2cm, outer to midline and
5cm. below costal margin.
It was opined by PW10 in his evidence that the death of the
victim was due to head injury, and ante-mortem injuries 1 to 7
D.S.R.No.4 of 2018 & con. cases
could be caused by MOI and MOIII and ante-mortem injury 8
could be caused by stamping or by kicking. PW11 was a senior
resident in the Neurosurgery Department of the Government
Medical College, Kottayam who issued Ext.P6 certificate stating
that the deceased was admitted in the hospital on 29.11.2009
with severe head injury; that craniotomy surgery and
haematoma evacuation were done and that the patient died at
11.55 p.m. on 08.12.2009.
17. PW12 was the doctor who examined PWs 1 and
2 at the Taluk Hospital on 29.11.2009. PW12 deposed that on
that day, at 8.05 p.m. he examined PW2 and the injuries noted
by him on the body of PW2 then were only an abrasion 3x2 cm
on the right side of face and abrasion 0.5x0.5 on the back. It
was also deposed by PW12 that the alleged cause of injury as
mentioned to him by PW2 was " ണൻ, മഞ( ത ടങ ണൽ
അറ വ നച ലർ വചർന മർദ ചത ൽ വച 7.45 P.M വചർതല".
Ext.P7 is the wound certificate issued by PW12 in this
connection. It was also deposed by PW12 that on the same day
he also examined PW1 and he noticed tenderness then on her
right flank and she was suffering from movement restriction on
D.S.R.No.4 of 2018 & con. cases
her right shoulder. PW12 deposed that the cause of injury as
informed to him by PW1 was the same as informed to him by
PW2. Ext.P8 is the wound certificate issued by PW12 in this
connection. In cross-examination, PW12 clarified that the
deceased was also brought to the hospital along with PWs 1
and 2 and he was immediately referred to the Medical College
Hospital, after giving first aid.
18. PW13 is the official of Cherthala Municipality
who attended the Ward Council Meeting held on 29.11.2009.
PW13 deposed that in the Ward Council Meeting, a youngster
raised a query whether the sale of coir mats was in terms of
any Government Order and the query was answered by the
sixth accused stating that the coir mats were sold in terms of a
scheme. According to PW13, nothing else happened in the
Ward Council Meeting in respect of the said matter.
19. PW15 is the police official who recorded the
statement of PW1 at about 7.30 p.m at the Taluk Hospital,
Cherthala. PW15 deposed the said fact in his evidence. In
cross-examination, he stated that he recorded all that was
stated to him by PW1 and later read over the same to her and
D.S.R.No.4 of 2018 & con. cases
she put her signature thereon, on being satisfied that the
statement has been recorded correctly. PW17 was the police
officer who registered the crime and conducted the initial
investigation in the case. PW17 deposed that he prepared
Ext.P3 scene mahazar and seized MOI and MOIII weapons and
MOII, MOIV and MOV articles in terms of the same and later
arrested accused 1 to 4 on 30.11.2009.
20. PW18 was the police officer who took over the
investigation in the case from PW17. PW18 conducted a
substantial part of the investigation. It was PW18 who affirmed
in his evidence that the Left Democratic Front Government was
in power in the State as also in the Municipality at the time of
occurrence. It was also affirmed by PW18 that the sixth
accused was, at that point of time, the Chairman of the
Standing Committee of the Municipality. In cross-examination,
PW18 stated that he took additional statements of PWs 1 to 3
prior to recording their statements under Section 164 of the
Code. When PW18 was asked in cross-examination whether
PWs 1 to 3 have stated to him in the additional statements
about the involvement of any person other than accused 1 to 4,
D.S.R.No.4 of 2018 & con. cases
the answer given by PW18 was that PW2 disclosed to him that
two other persons were standing outside the house of the
deceased. Similarly, even though PW18 stated that PWs 1 to 3
did not state in their additional statements the information, if
any, passed on to him by PW7, it was added by PW18 that one
Chellappan also gave a statement on 05.12.2009 that he saw
all the six accused at about 7 p.m. on the date of occurrence in
the house of the fifth accused. It was also clarified by PW18
that none of the witnesses disclosed in their statements given
to him that they saw the fifth accused at the scene on the date
of occurrence. Similarly, PW18 clarified that PW3 did not
disclose to him in her statement recorded on 01.12.2009 that
she saw somebody kicking her husband. To a specific question
put to PW18 as to the date on which the statement of PW7 was
recorded, PW18 stated that it was on 24.03.2010. Even though
PW18 affirmed in cross-examination that his investigation
revealed the presence of accused 5 and 6 at the scene at the
time of occurrence, he clarified that there is no evidence to
indicate that all the accused came together and left the scene
D.S.R.No.4 of 2018 & con. cases
together after the occurrence. The relevant questions and
answers read thus:
"A5 ഉഉ A6 ഉഉ A1 to A4 ന പഉ place of occurrence ൽ എത
എന ത ങൾ വ സ വണ (Qn) ആ സമ ത അവ നട
presence ഉണ (An) ഒന ച എ വ ഉ വനത
റ ന വണ (Qn) ഇ (An) ഒന ച സഉഭവഉ ഴഞ
മടങ വ ത റ ന വവ (Qn) ഇ (An)"
It was also clarified by PW18 in the cross-examination that he
did not get any information about any other occurrence that
took place in front of the house of the deceased on the relevant
day. In answer to a court question as to why the sixth accused
was not arrested despite dismissal of applications preferred by
him for anticipatory bail, the answer given by PW18 was that
though PW18 tried to locate the sixth accused, the former
could not do so. In the first remand application, it was asserted
that there were only four accused in the case. However, in the
subsequent police custody application, it is stated that there
are other accused also in the case. When PW18 was asked by
the court as to the reason for taking such a stand in the second
remand application, he did not give any answer. Another
question put to PW18 by the court was as to the reason why
D.S.R.No.4 of 2018 & con. cases
accused 5 and 6 were not questioned despite the statement of
Chellappan as also the 164 statements of the witnesses, the
answer given by PW18 was that it was on account of his
inexperience. It was clarified by PW18 that all the accused are
CPM activists. To a specific question put to PW18 as to why the
sixth accused was not questioned despite the fact that he had
been to the house of the deceased on the relevant day, the
answer given by PW18 was that there is no reason.
21. PW19 was the police officer who was in charge
of the investigation in the case on 19.12.2009. PW19 deposed
that on the said day, he preferred an application before the
Chief Judicial Magistrate, Alappuzha to record the statements of
PWs 1 to 3 under Section 164 of the Code and it is on that
basis, their statements were recorded on 07.01.2010. In answer
to a court question as to the reason for preferring an
application for recording the statements of the witnesses under
Section 164 of the Code, PW19 clarified that PWs 1 to 3
approached him on 19.12.2009 and informed him that there
are two other accused in the case and it is in the said
D.S.R.No.4 of 2018 & con. cases
background that PW19 preferred an application for recording
their statements under Section 164 of the Code.
22. PW20 is the Judicial Magistrate who recorded
the statements of PWs 1 to 3 under Section 164 of the Code.
Exts.P25 to P27 are the statements of PWs 1 to 3 recorded
under Section 164 of the Code. In cross-examination, PW20
clarified that PW1 disclosed to PW20 that the police has not
recorded the statements given by PW1 in full.
23. PW21 was the police officer who completed the
investigation in the case after taking over the investigation
from PW18. PW21 deposed, among others, that the sixth
accused surrendered before him on 24.07.2010 and his arrest
was recorded at 6.15 p.m. on the said day and he was
produced before the court with an application of remand at
8.15 p.m. on that day itself. It was also deposed by PW21 that
in the meanwhile, the sixth accused was taken to the house of
the fifth accused where the conspiracy allegedly took place and
also got the fifth and sixth accused identified by the witnesses.
After the cross-examination, on a question put to PW21 by the
court as to the reason for the hurry to produce the sixth
D.S.R.No.4 of 2018 & con. cases
accused in court where there are very serious allegations
against him, without asking for his custody for interrogation,
PW21 did not give any answer. Similarly, a question was also
put by the court to PW21 as to the reason why PW19, who
preferred an application before the Chief Judicial Magistrate for
recording the statements of the witnesses under Section 164 of
the Code was not cited as a witness in the case, the answer
was that it was an omission on the part of PW21.
24. DW1 is Chellappan who was referred to by PW2
in his evidence as the person who accompanied the fifth and
sixth accused to their house in the afternoon on the date of
occurrence to sell coir mats. DW1 deposed that he had not
gone to the house of the deceased anytime for the sale of coir
mats. DW1 also deposed in his evidence that he participated in
the Ward Council Meeting held on the date of occurrence and
there was no discussion in the meeting over the sale of coir
mats. It was also deposed by DW1 that he did not go in front of
the house of the fifth accused on that day and that he has not
given any statement to the police in connection with the case.
In cross-examination, it was stated by DW1 that the house of
D.S.R.No.4 of 2018 & con. cases
the deceased is located within 100 meters from the house of
DW1 and that he did not enquire about the attack in the house
of the deceased. It was, however, clarified by DW1 in cross-
examination that he did not listen carefully and completely as
to what transpired in the Ward Council Meeting on that day,
even though he attended the meeting.
25. As already noted, the accused belong to the
political party "CPI(M)" and among them, the sixth accused was
a local leader of that party and was holding, at the time of
occurrence, the office of the Chairman of the Cherthala
Municipal Standing Committee. It has come out in evidence
that at the time of occurrence, the said political party was in
power in the State and also in the Municipality. The case of the
prosecution is that the sixth accused and a few others went to
the house of the deceased in the afternoon of the date of
occurrence to sell coir mats and insisted the deceased to
purchase a coir mat from them in the pretext that it is
compulsory for everyone to buy coir mats from them; that the
deceased refused to purchase a coir mat from the sixth
accused; that the said conduct of the deceased caused
D.S.R.No.4 of 2018 & con. cases
irritation to the sixth accused and he left the house of the
deceased after leaving a coir mat there with the comment
"ത വവണ എങ ൽ അത തച ള". It is also the case of
the prosecution that in the Ward Council Meeting held on the
evening of the same day, PW2 questioned the forceful sale of
coir mats by the sixth accused to those who are unwilling to
buy the same and the said conduct of PW2 also irritated the
sixth accused and he had shown his irritation to PW2 by telling
him in the meeting in front of others that if he does not require
the coir mat, he can set it ablaze. The occurrence took place
within a few hours after the Ward Council Meeting. PWs 1 to 3
have a case that inasmuch as the sixth accused is a prominent
leader of the political party CPI(M), PW18 was not prepared to
array him as an accused in the case in spite of the fact that it
has been specifically stated in the First Information Statement
recorded immediately after the occurrence that the cause of
the attack was the incident that took place in the house in the
afternoon over the sale of coir mats. It is also their case that
PW18 was in a hurry to close the case without proper
investigation, taking the stand that the assailants were only
D.S.R.No.4 of 2018 & con. cases
four persons. In the evidence given by PW1, it was categorically
stated that PW15 who recorded the First Information Statement
from her had not read over the same to her and her signature
was obtained without reading over the statement to her. It was
also deposed by PW1 that it was since accused 5 and 6 who
were named by her and PW2 as the assailants in the
subsequent statements were not arrested, they applied for and
obtained the certified copies of the statements and having
found that PW18 was deliberately not arraying accused 5 and 6
as accused in the case on account of the political influence,
they approached PW19 for reddressal of their grievance. The
evidence tendered by PW19 indicates that it is on account of
the grievance of PWs 1, 2 and 3 that their statements were not
truly and correctly recorded by PW15, that PW19 preferred an
application for recording their statements under Section 164 of
the Code. The materials indicate that it is in the light of the
statements of the witnesses recorded under Section 164 of the
Code that accused 5 and 6 were arrayed as accused in the
case. The materials also indicate that even though the said
persons were arrayed as accused 5 and 6, the sixth accused
D.S.R.No.4 of 2018 & con. cases
was not arrested, though the fifth accused was arrested after
about four months on 24.05.2010. It is seen that the sixth
accused was arrested only much later when he surrendered
before PW21, the investigating officer, who took over the
investigation from PW18, completed the investigation and
submitted the final report. It is interesting to note that the sixth
accused surrendered in the office of PW21 at 6.15 p.m. on
24.07.2010 and within a span of two hours, the sixth accused
was produced before the Magistrate and his custody was not
sought for investigation, although very serious allegations
including the allegation of a criminal conspiracy to cause the
death of the victim was attributed against him. It is pertinent to
note that even though PW19 had a specific role in the
investigation, he was not cited as a witness in the final report
by PW21. As noticed, when PW21 was questioned by the Court
as to why PW19 was not cited as a witness in the case, he
evaded from answering the said question stating that it was an
omission on his part. Needless to say, PW21 did not cite PW19
as a witness to prevent PW19 from explaining to the Court the
circumstances under which PW19 preferred an application to
D.S.R.No.4 of 2018 & con. cases
record the statement of PWs 1, 2 and 3 under Section 164 of
the Code. During the cross-examination of PW21, even though
the court required him to explain the reason for the hurry to
produce the sixth accused in court where there were very
serious allegations against the sixth accused without asking for
his custody for interrogation, PW21 did not offer any
explanation. The facts and circumstances mentioned above
would indicate beyond doubt that PWs 18 and 21 police officers
were prejudiced in favour of accused 5 and 6 and they were
extending all possible help to the said two accused and they
would not have been arrayed as accused in this case, but for
the intervention of PW19 to approach the Chief Judicial
Magistrate to record the statements of PWs 1, 2 and 3 again,
under Section 164 of the Code. It is trite that if the
investigation in a case is suspicious, the rest of the evidence in
the case will have to be scrutinised independent of the faulty
investigation; otherwise criminal trial will descend to the level
of investigating officers ruling the roost and if the court is
convinced that the evidence of a witness to the occurrence is
true, the court is free to act upon such evidence [See State of
D.S.R.No.4 of 2018 & con. cases
Karnataka v. K.Yarappa Reddy, (1999) 8 SCC 715]. It is
apposite in this context to quote paragraph 19 of the judgment
of the Apex Court in K.Yarappa Reddy, which reads thus:
"19. But can the above finding (that the station house diary is
not genuine) have any inevitable bearing on the other
evidence in this case? If the other evidence, on scrutiny, is
found credible and acceptable, should the Court be
influenced by the machinations demonstrated by the
investigating officer in conducting investigation or in
preparing the records so unscrupulously? It can be a guiding
principle that as investigation is not the solitary area for
judicial scrutiny in a criminal trial, the conclusion of the court
in the case cannot be allowed to depend solely on the probity
of investigation. It is well-nigh settled that even if the
investigation is illegal or even suspicious the rest of the
evidence must be scrutinized independently of the impact of
it. Otherwise the criminal trial will plummet to the level of the
investigating officers ruling the roost. The court must have
predominance and pre-eminence in criminal trials over the
action taken by investigating officers. Criminal justice should
not be made a casualty for the wrongs committed by the
investigating officers in the case. In other words, if the court
is convinced that the testimony of a witness to the
occurrence is true the court is free to act on it albeit the
investigating officer's suspicious role in the case."
(Underline supplied)
The evidence in this case, in the facts and circumstances
narrated above, needs to be appreciated keeping in mind the
dictum in K.Yarappa Reddy.
26. Let us now revert to Point (i). To begin with, the
accused maintained that there was no occurrence as alleged by
the prosecution. What was suggested by the accused to the
D.S.R.No.4 of 2018 & con. cases
witnesses who supported the prosecution case is that there was
another occurrence on the evening of the alleged day outside
the house of the deceased and the deceased as also the
members of his family suffered injuries in the said occurrence.
Even though such a suggestion was made to the witnesses,
nothing was brought out in the case to show that another
incident took place on the relevant day in front of the house of
the deceased. The fact that no other occurrence took place on
that day, has been brought out in evidence by the accused
themselves from the investigating officer and the stand taken
by the investigating officer when he was questioned about the
same was that, to his knowledge and information, there was no
such incident. In other words, there cannot be any doubt that
the occurrence as alleged by the prosecution, had taken place
and the deceased and the members of his family suffered
injuries in that occurrence and further that the deceased
succumbed to the injuries sustained to him in the said
occurrence.
27. The next aspect to be considered is the denial
by the accused of their complicity in the occurrence. The
D.S.R.No.4 of 2018 & con. cases
materials on record indicate that the attack in the house of the
deceased was an unanticipated one lasting only for a few
minutes, during which the assailants caused substantial
damage to the house, and also destroyed every movable that
stood in their way, apart from causing serious injuries to the
residents of the house. They did not even spare the two year
old child of PW2 from the attack. There cannot be any doubt to
the fact that one who is witnessing such an occurrence would
not be able to recollect precisely and accurately the sequence
of events, especially when several persons are involved in the
occurrence, for his/her attention would be to recollect one
incident after the other and he/she may not be able to see
everything that transpires at the scene of occurrence. That
apart, it has come out that the witnesses examined in the case
were unwilling to depose in court in tune with their previous
statements, and one among them, namely PW4 has even gone
to the extent of stating that she is unable to depose the truth
as she is afraid of the accused. These are also matters to be
borne in mind, while appreciating the evidence in the case.
D.S.R.No.4 of 2018 & con. cases
28. The occurrence was attempted to be proved by
the prosecution mainly through the oral evidence tendered by
PWs 1 to 4 and 6. The learned Senior Counsel for the first
accused, at the outset, contended that the evidence tendered
by the said witnesses are not consistent with their previous
statements and there are significant contradictions and
material omissions amounting to contradictions in their
evidence. That apart, it was pointed out by the learned Senior
Counsel that there are improvements and embellishments in
their versions and that as a whole, the evidence tendered by
the ocular witnesses became entirely muddled, from which the
truth cannot be separated. According to the learned Senior
Counsel, in a case of this nature, it is not safe to convict the
first accused. The learned Senior Counsel relied on the
judgment of the Apex Court in Balaka Singh v. State of
Punjab, (1975) 4 SCC 511, in support of the said argument.
There is no doubt to the proposition argued by the learned
Senior Counsel that if truth cannot be separated from falsehood
from the evidence tendered by witnesses, it may not be safe to
convict the accused, even on the court finding that persons
D.S.R.No.4 of 2018 & con. cases
arrayed as accused are involved in the occurrence. Let us,
therefore, consider whether the case on hand is one where
truth can be determined from the evidence tendered by the
ocular witnesses.
29. Before proceeding to consider the said
question, it is necessary to consider the argument advanced by
the learned counsel for the second accused that the treatment
records of the deceased at the Taluk Hospital, Cherthala were
not made available by the prosecution. According to the
learned counsel, had the treatment records been produced,
they would have shown the nature of injuries suffered by the
deceased and the same would have given a clear picture to the
court as to whether the cause of death of the victim as alleged
by the prosecution is correct. The submission of the learned
counsel, therefore, was that non-production of the treatment
records of the deceased at the Taluk Hospital, Cherthala is fatal
to the prosecution case. There is nothing on record to indicate
that the deceased was treated at Taluk Hospital, Cherthala and
the only material available is that he was given only first aid at
that hospital, as the injuries were serious. What is discernible
D.S.R.No.4 of 2018 & con. cases
from the materials on record is that the deceased was referred
to the Medical College Hospital, Kottayam, as the injuries
sustained by him were found to be serious. Under such
circumstances, the priority of all concerned would be to give
preference to the treatment and not to find out the cause of
injury. There is, therefore, no merit in this argument. Another
argument advanced by the learned counsel for the second
accused is that apart from the surgical wound, no other
external injury corresponding to the evidence tendered by PWs
1 to 3 has been proved in this case, and the same would cast a
serious doubt as to the genuineness of the prosecution case.
We do not find any merit in this argument also. In cases where
a patient is subjected to any immediate procedure as in the
case on hand, there may not be any evidence as to the nature
of injuries sustained, for the same would be superseded by
surgical corrections, and in such cases, merely for the reason
that there is no evidence of the original injury, the case of the
prosecution cannot be suspected.
30. One of the contentions seriously pressed into
service by the learned Senior Counsel for accused 5 and 6 is
D.S.R.No.4 of 2018 & con. cases
that the presence of the said accused at the scene at the time
of occurrence has not been satisfactorily established by the
prosecution in the case. According to the learned Senior
Counsel, the evidence tendered by the ocular witnesses in this
regard are totally unreliable. Inasmuch as the accused were
found guilty of offences punishable under Sections 143, 147,
148 and 149 of IPC, the contention aforesaid assumes
importance and ought to be considered, before proceeding to
decide the other points that arise for consideration. As regards
the presence of the sixth accused, it was argued by the learned
Senior Counsel that had the sixth accused been present there
among the assailants and had he exhorted the remaining
assailants as deposed by PW1, she would have certainly
mentioned the presence of the sixth accused at the scene in
the First Information Statement given by her, for the sixth
accused being a prominent figure in the locality in his capacity
as the Chairman of the Municipal Standing Committee, there
was absolutely no reason for PW1 to omit to mention his name
in the First Information Statement. It is all the more so since he
had been to her house on the afternoon of the same day for the
D.S.R.No.4 of 2018 & con. cases
sale of coir mats and there was a wordy altercation between
him and her husband, namely PW2 in the Ward Council Meeting
held on that day over the sale of the said coir mats. We find
force in this argument. The ocular witnesses do not attribute
any overt acts to the sixth accused, except the exhortation
alleged to have been made by him. Similarly, the ocular
witnesses do not have a case that the sixth accused went
inside the house in the course of the occurrence. As rightly
contended by the learned Senior Counsel for the sixth accused,
had the sixth accused been present at the scene at the time of
the occurrence and had he made the exhortation as deposed
by PW1, he should have been the first person to be named by
PW1 while giving the First Information Statement to PW15, the
police official who recorded the statement of PW1. We take this
view also for the reason that even though her additional
statements were recorded by the investigating officers more
than once, she had never disclosed the presence of the sixth
accused at the scene at the time of occurrence and it is in the
statement of PW1 recorded under Section 164 of the Code, for
the first time, PW1 implicated the sixth accused as a person
D.S.R.No.4 of 2018 & con. cases
who was present at the scene at the time of occurrence and
attributed an overt act on to him also. Of course, PW1 has a
case that even though she disclosed about the presence of the
sixth accused in her statements to PW15, he did not record the
same on account of the political influence of the sixth accused.
We are not impressed by the said stand of PW1, for, in her
previous statement recorded on 01.12.2009, her version was
that an identical exhortation was made by the second accused.
The relevant evidence reads as "അവപ ൾ ണൻ
അട ച ന ന ടഅ നളഎനവ ള ച റഞ". In the dock, PW1
however, changed her stand and attributed the said overt act
to the sixth accused. We are, therefore, inclined to hold that it
is not safe to place reliance on the evidence tendered by PW1
as regards the presence of the sixth accused at the scene of
occurrence on the relevant day, and if that be so, it has to be
held that the prosecution has not proved satisfactorily, the
presence of the sixth accused at the scene at the time of
occurrence.
31. Let us now consider the question whether the
presence of the fifth accused at the scene at the time of
D.S.R.No.4 of 2018 & con. cases
occurrence, has been satisfactorily established in the case. The
presence of the fifth accused was spoken to mainly by PW1 and
PW3. The evidence tendered by PW1 in this regard was
seriously attacked by the learned Senior Counsel for the fifth
accused pointing out that had the fifth accused been present at
the scene, he being a person previously known to her, PW1
ought to have mentioned his name as well in the First
Information Statement given to PW15. It was also asserted by
the learned Senior Counsel that immediately after the
occurrence, an additional statement of PW1 was recorded by
PW18 on 01.12.2009 and she did not mention about the
involvement of the fifth accused in the said statement also. It
has come out in evidence that the fifth accused is the husband
of a friend of PW1 and she knew the name of the fifth accused
even prior to the occurrence. In spite of the said fact, PW1
omitted to mention the name of the fifth accused in the First
Information Statement and in the additional statements.
Instead, she named two other persons who were known to her,
in the First Information Statement. True, merely on account of
that reason, it cannot be said that the fifth accused was not
D.S.R.No.4 of 2018 & con. cases
present at the scene at the time of occurrence, as we cannot
rule out the situation of PW1 being unable to recollect his name
at the time of giving the First Information Statement, especially
having regard to the background in which her statement was
recorded by the police. As noted, the version of PW1 as regards
the overt act of the fifth accused is that hearing an exhortation
from outside the house, the fifth accused immediately
thereupon barged into the house and gave a kick on the
abdomen of the deceased. True, during the cross-examination
of PW1, it was suggested to her by the Senior Counsel for the
fifth accused that she had not mentioned the name of the fifth
accused in her statement recorded on 01.12.2009 and her
explanation was sought on the said aspect in compliance with
the provision contained in Section 145 of the Indian Evidence
Act. PW1 however denied the suggestion and asserted that she
informed PW18 while recording that statement as regards the
involvement of the fifth accused also. But, it is seen from the
materials on record that PW18 refuted the said stand of PW1
and affirmed that the presence of the fifth accused was never
spoken to by her in her statements recorded by him. In this
D.S.R.No.4 of 2018 & con. cases
context, it is necessary to note that PW18 affirmed in his
evidence that PW3 also had not stated to him anything as
regards anyone giving a kick to the deceased. That apart, in
the previous statement of PW1, which is marked as Ext.D6,
what was stated by her was that only accused 1 to 4 entered
inside the house at the time of attack. Even though PW1 denied
having made such a statement, PW18 affirmed that she made
such a statement. Ext.D6 statement of PW1 is not in sync with
the evidence tendered by her in the case. We are, therefore, of
the view that it is not safe to place reliance on the evidence
tendered by PWs 1 and 3 as regards the presence of the fifth
accused at the scene of occurrence. Of course, PW2 also stated
in his evidence that he saw the fifth accused kicking the
deceased and that the fifth accused was also present among
the assailants who destroyed their house and the movables
therein. PW2 was inside the room when the fifth accused
allegedly stamped the deceased and it is thereafter, according
to PW2, he destroyed some of the window glasses. Inasmuch as
PW2 was inside the closed room, according to us, it is not safe
to place reliance on the evidence tendered by PW2 as against
D.S.R.No.4 of 2018 & con. cases
the fifth accused. Needless to say, it has to be held that the
prosecution has not proved satisfactorily, the presence of the
fifth accused also at the scene at the time of occurrence.
32. Let us now examine the complicity of the
remaining accused. Before examining the complicity of the
remaining accused, it is necessary to have a picture about the
earliest version of PW1 as regards the occurrence as disclosed
by her to PW15 immediately after the occurrence while she was
undergoing treatment at the Taluk Hospital, Cherthala. The
relevant portion of the First Information Statement as regards
the occurrence reads thus :
"എ നറ വലത ക വത ള ഉണ ട ള വവദ ഇന (29-11-
09) കവ 7.30 മണ വ ട :ട മഞ( , ണൻ ത ടങ
ണൽ അറ വന ലഞ വ ർ വചർന ഞങള നട
വട ളൽ അത പ മ ച റ തട ഷണഉ ന ണ
അട ചത ൽ വച ഉണ ത ണ. xxxxxxxxxxxxx റ ട
വല നല ച മട നത ഴ ല ള ള മഞ( , ണൻ ത ടങ
ണ ൽ അറ വ ന മ:ന വ ഉ :ട വ ട ൽ റ വന ട
മഞ( ഒ >ഉ റ നണന റഞ വചടന
റവത വള ച. അവപ ൾ വചടൻ അവവ ട മ
അ ത ന സഉസ ഉ എന റഞ . ഉടന അവർ
എ വ ഉ :ട മറ വല റ. മറ വല
റ ഉടൻ മഞ( റ ൽ ഒള പ ച ടച ന
തട ഷണഉ ന ണ വചടന ലപ വശ>ഉ അട ച . വചട നറ
മ ഖത ഉ, റത ഉ മറ ഉ ന ട വച വന . അവപ ൾ അചൻ
D.S.R.No.4 of 2018 & con. cases
ഓട നചന തടസഉ ട ച . എന ട വചടന അട ത മ റ വലയE
തള റ ത അടച . ഉടന തനന അവർ എ വ ഉ
വചർന അവ നട ക വശഉ ത ന തട ഷണങൾ
ന ണ അചന ലപ വശ>ഉ അട ച . അചൻ അട ന ണ
മറ ഞ ത നഴ വ ണ . വ ണ ഉ അവർ അചന ത നത ണ
ഞ ൻ തടസഉ ട ച . അവപ ൾ മഞ( അവ നറ ക യ ൽ
ഇ ന തട ഷണഉ ന ണ എ നറ വലത വത ള ല ഉ,
മത തമ മ:ന ല അട ച . അട ന ണ വവദ ച
ഞ ൻ ഉചത ൽ ലവ ള ച . അവപ ൾ അവർ എ വ ഉ
വചർന വചടൻ റ ഇ ന മറ നട ത ഉ, ( ല നറ
ച ള ഉ, വ ട ഉ ണങള ഉ ത നപ ട ച . സഉഭവഉ ണ
അ ൽവ സ ൾ ഓട വ നത ണ അവർ റത റങ
നതവ ട ഓട വ ."
As already noticed, the evidence tendered by PWs 1 to 3 are
not fully consistent with their previous statements recorded by
the police. Of course, the evidence tendered by PWs 1 to 3 are
consistent with their statements recorded by the Magistrate
under Section 164 of the Code. But, as noted, the 164
statements of the witnesses were recorded much after the
occurrence, on 07.01.2010. Inasmuch as the possibility of
embellishments and improvements cannot be ruled out on
account of the long lapse of time in between the occurrence
and the date of recording of the 164 statements, the said
statements cannot be treated at par with the First Information
D.S.R.No.4 of 2018 & con. cases
Statement given by PW1. At the same time, it is necessary to
consider carefully, the contentions raised by the accused as
regards the omissions made by the said three witnesses in their
previous statements recorded by the police under Section 161
of the Code, in the light of the specific case of the injured that
their statements were not being recorded truly and correctly by
the police. As already noticed, the law on the point is that in a
case of this nature, the court must make an attempt to
separate the grain from the chaff, i.e., the truth from falsehood.
33. On a careful scrutiny of the evidence tendered
by PWs 1 to 4 and 6, as stated in the preceding paragraphs, we
find that the evidence tendered by PW2 that at about 7 p.m. on
the relevant day, when he opened the door of the house on
hearing his name being called out by someone from outside, he
saw accused 2 and 4 there and when they required him to
come out of the house, he invited them inside and proceeded
back therein on the assumption that they would follow him and
that, he noticed then through the door of the kitchen which was
kept open, the shadow of a person on the side of the kitchen
and as he sensed something wrong, he turned back and whilst
D.S.R.No.4 of 2018 & con. cases
so, he saw the first accused attempting to beat him using MOI
wooden log and when he turned his face then towards the left,
the hit fell on his shoulder and cheek, can be accepted since
the same is consistent with his previous statements. Similarly,
the evidence tendered by PW2 that by the time he got into the
room and attempted to close the room from inside in order to
escape from the attack, the first accused banged on the door,
is also consistent with his previous statements and can be
accepted. The said parts of the evidence of PW2 is
corroborated substantially by the oral evidence tendered by
PWs 1 and 3 and the opinion evidence tendered by PW12, the
doctor who examined PW2 at the Taluk Hospital, Cherthala
within a few hours after the occurrence. Coming to the
evidence tendered by PW1, as noted, she deposed that when
her husband required accused 2 and 4 to come inside their
house, accused 1 and 4 barged into the house and attempted
to beat PW2 and when she attempted to ward off the attack on
PW2, the assailants attacked her also; that when PW2 went
inside the next room and closed the door from inside, the first
accused started banging on the door of that room with a
D.S.R.No.4 of 2018 & con. cases
wooden log; that in the meanwhile, the third accused caught
hold of her two year old child and PW3 then intervened and
took away the child from the third accused; that the deceased
who was then watching television at that time in the adjoining
room, came to the hall on hearing the noise and the first
accused then beat the deceased on his head using MOI,
wooden log carried by him and the blow fell on the right back of
his head; that the first accused thereupon beat on the head of
the deceased two more times using MOI wooden log; that in the
meanwhile, the others who were present inside the house
namely accused 1 and 4 also beat the deceased on his back
and on his leg; that when the deceased sat down then by
keeping his hand on his head on account of the beating, PW1
rushed towards him to hold him and the first accused then beat
her also on her right shoulder and that in the meanwhile, the
accused who remained inside the house damaged the
movables therein and also broke the electrical fittings. The said
evidence of PW1 is consistent with her previous statements and
there are no contradictions in respect of the same, and we do
not find any reason to doubt the veracity of the said part of the
D.S.R.No.4 of 2018 & con. cases
evidence, especially when the same is corroborated
substantially by the oral evidence tendered by PW3, the wife of
the deceased and the opinion evidence given by PW12, the
doctor who examined PW1 at Taluk Hospital, Cherthala
immediately after the occurrence, even though PW12 noticed
only tenderness on the right flank of PW1 and also movement
restrictions on her right shoulder. The evidence is also
corroborated by the opinion evidence of PW10, the doctor who
conducted the autopsy examination of the body of the
deceased as regards the ante-mortem injures. Coming to the
evidence tendered by PW3, she gave a narration of the
destruction of the various movables in the house. It was
specifically deposed by PW3 that before leaving the house, the
accused destroyed the movables in the house such as sewing
machine, refrigerator etc., flipped the cot kept in the room and
destroyed the tube light on the southern side of the house. The
evidence tendered by PW3 as regards the various acts of
destruction done by the accused have not even been
challenged by the accused in their cross-examination. Coming
to the evidence tendered by PW4, her evidence that when she
D.S.R.No.4 of 2018 & con. cases
rushed to the house of the deceased on hearing hue and cry
from there, she found the house of the deceased destroyed and
saw the first accused there in a yellow t-shirt. There is
absolutely no reason to disbelieve the said part of the evidence
tendered by PW4. In the context of the evidence tendered by
PW4, it is necessary to mention that this witness stated, when
she was examined by the Public Prosecutor in terms of Section
154 of the Indian Evidence Act, that when the accused
destroyed the movables inside the house of the deceased,
there was a loud noise and nobody dared to go to that place
then. As already noticed, PW4 is a witness who conceded in her
evidence that she is unable to divulge the truth in her evidence
as she is afraid of the accused. Coming to the evidence
tendered by PW6, there is absolutely no reason to disbelieve
the evidence tendered by the said witness that when he rushed
to the house of the deceased on hearing hue and cry from
there, he saw accused 1 and 2 standing outside the house of
the deceased and accused 3 and 4 smashing the windows of
the house.
D.S.R.No.4 of 2018 & con. cases
34. True, there are a few inconsistencies in the
evidence tendered by PWs 1 to 3 as regards the order in which
accused 1 to 4 inflicted injuries on the deceased and the
injured, as also the exact parts of their body where injures have
been inflicted. According to us, the said minor inconsistencies
shall not deter us from accepting the evidence tendered by
PWs 1 to 3 as regards the core aspect of the prosecution case
spoken to by them as discussed in the preceding paragraphs.
The said evidence establishes beyond reasonable doubt that
accused 1 to 4 trespassed into the residential compound of the
deceased; that they barged into the residential building of the
deceased thereupon, when PW2 did not come out of the house
as required by them, and attacked PW2 using the wooden logs
secured by them from there; that when PW2 retreated to one of
the rooms and attempted to close the door to prevent the
attack, the assailants not only attacked the deceased who
intervened, but also PW1 with the wooden logs; that in the
meanwhile they also vandalized the house of the deceased by
destroying its doors, windows, lights and movables of the
members of the family kept inside the house and that they
D.S.R.No.4 of 2018 & con. cases
have even created a scene of terror by banging on windows,
doors, gate, making loud noises and brandishing the wooden
logs at neighbours who had rushed to the house upon hearing
the commotion, conveying a message that they dared to
commit such acts openly. The evidence tendered by the
witnesses referred to in the preceding paragraphs would also
establish that in the course of the attack, the first accused beat
PW2 on his cheek and shoulder with MOI wooden log, caused
hurt to PW1 and beat the deceased using MOI wooden log on
his head. Point (i) is answered accordingly.
35. Point (ii): The essence of the offence of
conspiracy lies not in doing the act or effecting the purpose for
which the conspiracy has been hatched, but in forming the
scheme or agreement between the parties. Generally, a
conspiracy is hatched in secrecy, and it may be difficult to
adduce direct evidence for the same. The law does not,
therefore, enjoin a duty on the prosecution to lead evidence of
such character, which is impossible to be led, or at any rate,
extremely difficult to be led. The duty on the prosecution is only
to lead such evidence which it is capable of leading, having
D.S.R.No.4 of 2018 & con. cases
regard to the facts and circumstances of each case. Needless to
say, the express agreement need not be proved. Nor is the
actual meeting of two persons necessary. Nor is it necessary to
prove the actual words of communication. On the other hand,
the evidence as to transmission of thoughts sharing the
unlawful design may be sufficient. In other words, it will suffice
if there is a tacit understanding between conspirators as
regards what should be done so long as the relative acts or
conduct of the parties are conscientious and clear to mark their
concurrence as to what should be done. Broadly stated, the
circumstances in a case, when taken together at face value,
should indicate the meeting of minds between the conspirators
for the intended object of committing the offence, if
circumstances existed prior in point of time than the actual
commission of the offence, in furtherance of the alleged
conspiracy. A man may join a conspiracy by word or by deed. It
is however essential that the offence of conspiracy requires
some kind of physical manifestation of agreement.
36. Section 10 of the Indian Evidence Act reads
thus:
D.S.R.No.4 of 2018 & con. cases
"10. Things said or done by conspirator in reference to
common design
Where there is reasonable ground to believe that two
or more persons have conspired together to commit an
offence or an actionable wrong, anything said, done or written
by any one of such persons in reference to their common
intention, after the time when such intention was first
entertained by any one of them, is a relevant fact as against
each of the persons believed to be so conspiring, as well for
the purposes of proving the existence of the conspiracy as for
the purpose of showing that any such person was a party to
it."
As evident from the extracted statutory provision, where there
is reasonable ground to believe that two or more persons have
conspired together to commit an offence, proof of even acts
done by any one of such persons in reference to the common
intention, after the time when such intention was entertained
by any one of them, is a relevant fact as against each of the
persons believed to be so conspiring as well as for the purposes
of proving the existence of the conspiracy and also for the
purpose of showing that any such person was a party to it. It
was held by the Apex Court in State v. Nalini, (1999) 5 SCC
253 that if there is prima facie evidence to show that there was
a criminal conspiracy as alleged by the prosecution, then
anything done by the conspirators in reference to their
D.S.R.No.4 of 2018 & con. cases
common intention, would become substantive evidence.
Paragraph 107 of the judgment in the said case reads thus:
"107. The first condition which is almost the opening lock of
that provision is the existence of "reasonable ground to
believe" that the conspirators have conspired together. This
condition will be satisfied even when there is some prima
facie evidence to show that there was such a criminal
conspiracy. If the aforesaid preliminary condition is fulfilled
then anything said by one of the conspirators becomes
substantive evidence against the other, provided that should
have been a statement "in reference to their common
intention". Under the corresponding provision in the English
law the expression used is "in furtherance of the common
object". No doubt, the words "in reference to their common
intention" are wider than the words used in English law (vide
Sardar Sardul Singh Caveeshar v. State of Maharashtra [AIR
1965 SC 682 : (1964) 2 SCR 378 sub nom Bhagwan Swarup
Lal Bishan Lal v. State of Maharashtra] )."
The said principle has been reiterated by the Apex Court in
State of H.P. v. Satya Dev Sharma, (2002) 10 SCC 601. It
was clarified in Satya Dev Sharma that for the court to
consider whether there is reasonable ground to believe that
two or more persons have conspired together to commit an
offence, as envisaged in Section 10 of the Indian Evidence Act,
it is not necessary that the court should be satisfied that the
prosecution has proved the case beyond reasonable doubt at
that stage. Paragraph 7 of the said judgment reads thus:
"7. After hearing the arguments of Mr Gopal Subramanium,
learned Senior Counsel for the State of Himachal Pradesh and
Mr Jaspal Singh, learned Senior Counsel for the
officials/accused in some of the cases and also the other
D.S.R.No.4 of 2018 & con. cases
learned counsel, we feel that the learned Single Judge of the
High Court has misdirected himself into believing that there
was a valid demarcation even according to the prosecution
case and that, therefore, demarcation will continue to hold
good under law until set aside by subsequent proceedings.
What we have understood properly from the prosecution case
is that the accused officials have made a pretext by showing
a fake demarcation pursuant to the conspiracy hatched by
themselves with the co-accused with the avowed object of
plundering the timber wealth from the government land.
Therefore, the High Court should have first focussed on the
question whether there were reasonable grounds to believe
that all or any two or more of the accused have conspired
together to commit the offence of plundering the timber
wealth from government lands. This exercise could be made
on a conspectus of the entire evidence. This is for the
purpose of Section 10 of the Indian Evidence Act. This Court
vide Rajiv Gandhi case [State v. Nalini, (1999) 5 SCC 253 :
1999 SCC (Cri) 691] has held that for the court to consider
whether there is reasonable ground to believe, as envisaged
in Section 10 of the Indian Evidence Act, it is not necessary
that the court should be satisfied that the prosecution has
proved the case beyond reasonable doubt at that stage. If the
High Court found that there was reasonable ground to believe
that there was a criminal conspiracy as between all or any
two or more of the accused, it could have considered the next
question whether the alleged demarcation was made by the
accused as a follow-up of the said conspiracy. If the finding is
that the alleged demarcation was a follow-up of the criminal
conspiracy, it is an idle exercise to say that the said
demarcation would remain valid under law until it is set aside
in subsequent proceedings."
Keeping in mind the principles aforesaid, let us now consider
the point.
37. Let us now analyse the evidence let in by the
prosecution in this regard. The fact that the sixth accused went
to the house of the deceased with a few others on the
afternoon of the date of occurrence for the sale of coir mats is
D.S.R.No.4 of 2018 & con. cases
not disputed by the sixth accused. The dispute raised by the
accused relates only to the persons who accompanied the sixth
accused on the afternoon of the relevant day. Similarly, the fact
that the deceased was not prepared to purchase coir mats from
the sixth accused is not disputed. The evidence tendered by
PW2 shows that the conduct of the deceased in not purchasing
coir mats from the sixth accused irritated the latter and he
reacted to the deceased in an arrogant manner and threw MOVI
coir mat onto him. Similarly, the evidence tendered by PW2
shows that he raised the issue over the compulsory sale of coir
mats, as directed by the deceased, in the Ward Council Meeting
held on that day before the official of the Cherthala Municipality
and his query was answered immediately by the sixth accused
who was present there in front of others in an arrogant manner
stating that if PW2 does not require a coir mat, he can set it
ablaze. The evidence tendered by PW2 in this regard has been
corroborated by PW5, who was present in the Ward Council
Meeting when PW2 raised the issue. The said evidence was also
corroborated by PW13, the official of the Cherthala Municipality
who attended the Ward Council Meeting held on that day, even
D.S.R.No.4 of 2018 & con. cases
though PW13 did not say the manner in which the query of
PW2 was answered by the sixth accused. The evidence on
record as regards the manner in which the sixth accused
reacted to the deceased when he refused to purchase coir mats
from him and the manner in which the sixth accused reacted to
PW2 when he raised the issue relating to the sale of coir mats
in the Wad Council Meeting, establishes that the sixth accused
entertained a grudge against the deceased and his son, PW2.
The said circumstances, together with the fact that accused 1
to 4 are members of the political party to which the sixth
accused was the leader, according to us, constitute reasonable
grounds to believe that there was a criminal conspiracy among
them to attack the deceased and PW2, as also their house. The
question now, is whether there has been a physical
manifestation of the conspiracy. In order to prove the physical
manifestation of the conspiracy, the prosecution examined
PW7, a neighbour of the deceased. As noted, he is a witness to
Ext.P2 inquest and he deposed that on the date of occurrence,
his mother was admitted in the Taluk Hospital, Cherthala and at
about 7 p.m. on the said day, while he was proceeding to the
D.S.R.No.4 of 2018 & con. cases
hospital with food for his mother, he saw all the six accused
standing in front of the house of the fifth accused. It was also
deposed by PW7 that the second accused then asked him
where he was going and PW7 replied that he was going to the
hospital and when he turned back after proceeding a little
further, he noticed that they were discussing something. It was
also deposed by PW7 that he informed PW2 at the hospital
itself that he saw the accused together in front of the house of
the fifth accused and he informed the said fact to PW3 also on
the following day. It has come out in evidence that PW7 saw the
accused together a few minutes before the occurrence, that
too, in front of the house of the fifth accused. The evidence
aforesaid of PW7, according to us, demonstrates the physical
manifestation of the conspiracy hatched among accused 1 to 4
who were physically involved in the crime and the sixth
accused who maintained a grudge against the deceased and
PW2. We take this view for the reason that accused 1 to 4 and 6
are not persons who were residing near the place where they
were found standing by PW7, namely in front of the house of
the fifth accused. Of course, the fifth accused is a person
D.S.R.No.4 of 2018 & con. cases
residing in the house in front of which accused 1 to 4 and 6
were found standing. The time and place they were found
standing are also reasons for us to hold that their meeting
demonstrates the physical manifestation of the conspiracy. The
time was after the incident in the Ward Council Meeting and
before the occurrence and the place was one near the
residence of the deceased.
38. The learned counsel for the accused seriously
challenged the evidence tendered by PW7. At the outset, it was
argued by the learned counsel that PW7 had not mentioned to
the police officer who held the inquest that he saw accused 1 to
4 and 6 together immediately prior to the occurrence in front of
the house of the fifth accused. True, PW7 had not disclosed to
the officer who held the inquest that he saw the said accused in
front of the house of the fifth accused. But, according to us,
merely on account of that reason, it cannot be held that the
evidence tendered by PW7 is not reliable, for, it is not
necessary that PW7 should have known then the relevance of
what he had seen. Another argument advanced by the learned
counsel in this regard is that PW7 is a person belonging to the
D.S.R.No.4 of 2018 & con. cases
political party BJP; that he is an accused in a few cases,
including a case registered at the instance of the sixth accused
and that therefore, it is not safe to place any reliance on his
evidence. We do not find any merit in this argument also. True,
it has come out in evidence that PW7 belongs to the political
party BJP and he was an accused in a few cases, including a
case registered at the instance of the sixth accused. As regards
the case registered at the instance of the sixth accused, PW7
clarified that the case registered against him at the instance of
the sixth accused was settled between them and the accused
have not challenged the correctness of that statement. That
apart, the same cannot be a reason to reject the evidence
tendered by PW7, for we find that the same is credible
otherwise, inasmuch as the fact that PW7 could go to the
hospital from his house only through the road in front of the
house of the fifth accused and the fact that his mother was
admitted in the hospital on that day, are not challenged by the
accused in his cross-examination. Another argument advanced
by the learned counsel is that the statement of PW7 was
recorded by the police only on 24.03.2010. No doubt, the delay
D.S.R.No.4 of 2018 & con. cases
on the part of important witnesses giving statements to the
police would cast some doubt as to the veracity of their
evidence. But, according to us, there is no reason to doubt the
veracity of the evidence tendered by PW7 for that reason, for
having regard to the common course of natural events, human
conduct and public and private business, PW7 was not
expected to go to the police and inform what he had seen. On
the other hand, the police should have, in the course of
investigation, found PW7 and recorded his statements. Be that
as it may, as already noticed, when PW18 was questioned
about the delay in recording the statement of PW7, even
though PW18 admitted that the statement of PW7 was
recorded only on 24.03.2010, he clarified that the delay may
not be of much relevance since on 05.12.2009 itself, another
witness questioned by PW18 had informed him of the said fact.
The relevant evidence read thus:
"05.12.2009 നല നച പ നറ നമ ഴ ൽ
സഉഭവദ വസഉ 6 പ ത ള ഉ കവ ട7 മണ A5
നറവ ട ൽ ൽ നത ണ എനനമ ഴ റഞ."
D.S.R.No.4 of 2018 & con. cases
It is seen that the said person was also cited as a witness in the
case but he was not examined by the prosecution. Since he
was not examined by the prosecution, he was examined on the
side of the defence as DW1. DW1 deposed that he did not give
any statement to the police as stated by PW18. It is thus clear
that since the prosecution had doubts whether DW1 had been
won over by the accused, that he was not examined. However,
inasmuch as it has come out in evidence that others also have
stated to the investigating officer that they saw the accused
together immediately prior to the occurrence as disclosed by
PW7, according to us, the belated recording of the statement
of PW7 shall not deter us from accepting the evidence tendered
by PW7, even though they have not come forward to give
evidence in the case.
39. An argument seriously pressed into service by
the learned Senior Counsel for the sixth accused in the context
of the charge against the sixth accused for criminal conspiracy
was that in light of Section 120A IPC which defines criminal
conspiracy, a mere conspiracy to commit an illegal act or an
act which is not illegal by illegal means is not culpable and it
D.S.R.No.4 of 2018 & con. cases
becomes culpable only when a positive act is done by the
parties to the conspiracy for the fruition of the conspiracy.
According to the learned Senior Counsel, even assuming that
the prosecution has succeeded in establishing the agreement
between the sixth accused and the remaining accused, in the
absence of any evidence to show that the sixth accused had
done some act besides the agreement, the offence is not made
out. Section 120A reads thus :
"120A. Definition of criminal conspiracy.--When two or more
persons agree to do, or cause to be done,--
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to
commit an offence shall amount to a criminal conspiracy unless
some act besides the agreement is done by one or more parties
to such agreement in pursuance thereof.
Explanation.--It is immaterial whether the illegal act is
the ultimate object of such agreement, or is merely incidental
to that object."
Section 43 IPC reads thus :
43. "illegal", "legally bound to do"
The word "illegal" is applicable to everything which is an offence
or which is prohibited by law, or which furnishes ground for a
civil action; and a person is said to be "legally bound to do"
whatever it is illegal in him to omit."
D.S.R.No.4 of 2018 & con. cases
An illegal act, in the light of Section 43 IPC, includes not only
offences but also acts which are prohibited by law as also acts
which furnish grounds for civil actions. If one understands the
definition of "criminal conspiracy" as contained in Section 120A
in the above manner, it could be seen that not only agreements
to do or cause to be done but also agreements to do or cause
to be done acts which are prohibited by law or acts which
furnish grounds for civil actions, would fall within the scope of
the definition of criminal conspiracy. This aspect is clear from
sub-section (2) of Section 120B which makes criminal
conspiracies to commit acts which are not offences, also
punishable. If the words used in the proviso to Section 120A is
understood in the background of the scope of criminal
conspiracy as defined in Section 120A, it is explicit that the
requirement contained in the proviso that there shall be some
act besides the agreement to constitute the offence applies
only to conspiracies other than conspiracies to commit
offences. The scope of the proviso has been clarified in the
aforesaid manner by the Apex Court in Suresh Chandra Bahri
v. State of Bihar, 1995 Supp (1) SCC 80 and in Sushil Suri v.
D.S.R.No.4 of 2018 & con. cases
CBI, (2011) 5 SCC 708. The relevant portion in paragraph 96 of
the judgment of the Apex Court in Suresh Chandra Bahri
reads thus:
"96. In the above context we may refer to the provisions of
Section 120-A of the Indian Penal Code which defines criminal
conspiracy. It provides that when two or more persons agree to do,
or cause to be done, (1) an illegal act or (2) an act which is not
illegal by illegal means, such agreement is designated a criminal
conspiracy; provided that no agreement except an agreement to
commit an offence shall amount to criminal conspiracy unless
some act besides the agreement is done by one or more parties to
such agreement in pursuance thereof. Thus, a cursory look to the
provisions contained in Section 120-A reveals that a criminal
conspiracy envisages an agreement between two or more persons
to commit an illegal act or an act which by itself may not be illegal
but the same is done or executed by illegal means. Thus the
essential ingredient of the offence of criminal conspiracy is the
agreement to commit an offence. In a case where the agreement is
for accomplishment of an act which by itself constitutes an offence,
then in that event no overt act is necessary to be proved by the
prosecution because in such a fact situation criminal conspiracy is
established by proving such an agreement. In other words, where
the conspiracy alleged is with regard to commission of a serious
crime of the nature as contemplated in Section 120-B read with the
proviso to sub-section (2) of Section 120-A of the IPC, then in that
event mere proof of an agreement between the accused for
commission of such a crime alone is enough to bring about a
conviction under Section 120-B and the proof of any overt act by
the accused or by any one of them would not be necessary. The
provisions in such a situation do not require that each and every
person who is a party to the conspiracy must do some overt act
towards the fulfilment of the object of conspiracy, the essential
ingredient being an agreement between the conspirators to
commit the crime and if these requirements and ingredients are
established the act would fall within the trapping of the provisions
contained in Section 120-B since from its very nature a conspiracy
must be conceived and hatched in complete secrecy, because
otherwise the whole purpose may be frustrated and it is common
experience and goes without saying that only in very rare cases
one may come across direct evidence of a criminal conspiracy to
commit any crime and in most of the cases it is only the
circumstantial evidence which is available from which an inference
D.S.R.No.4 of 2018 & con. cases
giving rise to the conclusion of an agreement between two or more
persons to commit an offence may be legitimately drawn. ...."
(underline supplied)
40. The next issue to be examined is whether there
is satisfactory evidence to show that the fifth accused is a party
to the conspiracy. No doubt, it has come out in evidence that
the fifth accused was also an activist of the political party of
which the sixth accused was a leader. As we have already
found that even though it is alleged by the prosecution that the
fifth accused was one among those who attacked the house of
the deceased, the prosecution failed to adduce evidence in
support of the same. No doubt, PW7 deposed that the fifth
accused was also present along with the remaining accused
when he saw them prior to the occurrence. The pointed
question is whether the presence of the fifth accused along
with other accused in front of his own house is suffice to hold
that he is a party to the conspiracy. According to us, inasmuch
as the prosecution failed to establish the involvement of the
fifth accused in the occurrence and inasmuch as his presence
was noticed by PW7 only in front of his house, it is doubtful
whether he is a party to the conspiracy. We take this view also
D.S.R.No.4 of 2018 & con. cases
for the reason that criminal responsibility for a conspiracy
requires more, than a merely passive attitude towards an
existing conspiracy. The fifth accused, in the circumstances, is
entitled to the benefit of doubt in this regard. In the light of the
discussion in the preceding paragraphs, we are inclined to hold
that the prosecution has proved, beyond reasonable doubt, the
case of criminal conspiracy between accused 1 to 4 and 6 to
attack PW2 and the deceased as also to vandalise their house.
41. The next aspect to be considered relates to
the object of the conspiracy. The specific case of the
prosecution in this regard is that the conspiracy was for the
purpose of assaulting PW2 and committing murder of the
deceased. As noticed, the evidence tendered by the ocular
witnesses would show that accused 2 and 4 called PW2 out of
his house and it was since PW2 did not go out and instead,
called the said accused inside the house, accused 1 and 4
followed PW2 inside the house and attacked him. The evidence
of the witnesses would also show that the other residents in the
house, namely PW1 and the deceased stood in the way while
the assailants were attacking PW2 and vandalising the house
D.S.R.No.4 of 2018 & con. cases
and they sustained injuries then. The assailants did not carry
any lethal weapons and they committed the alleged acts with
the wooden logs secured by them from the property of the
deceased itself. We do not, therefore, find any satisfactory
material to hold that accused 1 to 4 and 6 had the object of
committing murder of the deceased. If the object of the
conspiracy was to commit murder of the deceased, we are of
the view that the assailants would have certainly carried some
weapons with them. But at the same time, it has been
established that accused 1 to 4 and 6 intended to commit
house trespass and mischief. The doubt relates to the person
on whom they intended to inflict injuries and the nature of
injuries that they intended to inflict. To resolve this doubt, this
court called for MOI and MOIII wooden logs with which the
assailants had inflicted injuries on the deceased and others.
MOI is a square wooden log having a length of 86 cm and a
width of 6 cm and MOIII is a wooden log having a length of 130
cm with un-identical widths at its different parts. Inasmuch as
the assailants used wooden logs of the sizes mentioned above
to attack the deceased and the members of his family, we have
D.S.R.No.4 of 2018 & con. cases
no doubt in our mind that the object of the conspiracy was at
any rate, to cause grievous hurt by dangerous weapons or
means. There is nothing on record to infer that accused 1 to 4
and 6 intended to inflict any bodily injury on PW1, the
daughter-in-law of the deceased. As already noticed, in fact,
they had called PW2 outside the house and it was since he did
not go out, the accused barged inside the house and proceeded
to attack PW2. It is thus evident that the common object of the
conspiracy was to trespass into the house of PW2 to commit
mischief there and cause grievous hurt to PW2 and not to
commit murder of the deceased. Point (ii) is answered
accordingly.
42. Point (iii): In order to attract the offences
punishable under Sections 143, 147 and 148 of IPC, there
should be an unlawful assembly. The essential condition of an
unlawful assembly is that its membership must be five or more.
The specific case of the prosecution is that accused 1 to 6
formed themselves into an unlawful assembly to commit the
crime. We have found that the case of the prosecution that
accused 5 and 6 were parties to the unlawful assembly, has not
D.S.R.No.4 of 2018 & con. cases
been established beyond reasonable doubt. It is not a case
where the prosecution alleges that a few named persons and a
group of other unidentified persons exceeding five, committed
the crime. On the other hand, it is a case where the prosecution
specifically alleges that the accused, six in number formed
themselves into an unlawful assembly to commit the crime. In
a case of this nature, if the court finds that the presence of two
or more persons is not established by the prosecution, the
remaining accused cannot be found guilty with the aid of
Section 149 IPC [See Mahendra v. State of M.P., 2022 SCC
OnLine SC 1348 and Rohtas v. State of Haryana, (2021) 19
SCC 465]. Needless to say, the conviction of the accused for
the offences punishable under Sections 143, 147 and 148 IPC
and the conviction of the accused for the remaining offences
with the aid of Section 149 IPC, is liable to be set aside.
43. Although Sections 34 and 149 IPC are modes
for apportioning vicarious liability on individual members of a
group, the difference between the provisions is that Section 34
IPC requires active participation and a prior meeting of minds,
whereas Section 149 IPC assigns liability merely by reason of
D.S.R.No.4 of 2018 & con. cases
the membership in the unlawful assembly. In reality, the
"common intention" required to bring a case under Section 34
IPC and the "common object" to form an unlawful assembly,
are usually inferred from the conduct of the individuals. As
noted, since Section 149 IPC is liable to be set aside, the
question that arises now is whether the court can substitute
Section 149 IPC with Section 34 IPC in a case of this nature. It is
seen that the same has been answered succinctly by the Apex
Court in Chittarmal v. State of Rajasthan, (2003) 2 SCC
266, in the following words:
"14. It is well settled by a catena of decisions that Section 34
as well as Section 149 deal with liability for constructive
criminality i.e. vicarious liability of a person for acts of others.
Both the sections deal with combinations of persons who
become punishable as sharers in an offence. Thus they have
a certain resemblance and may to some extent overlap. But a
clear distinction is made out between common intention and
common object in that common intention denotes action in
concert and necessarily postulates the existence of a pre-
arranged plan implying a prior meeting of the minds, while
common object does not necessarily require proof of prior
meeting of minds or preconcert. Though there is substantial
difference between the two sections, they also to some
extent overlap and it is a question to be determined on the
facts of each case whether the charge under Section 149
overlaps the ground covered by Section 34. Thus, if several
persons numbering five or more, do an act and intend to do
it, both Section 34 and Section 149 may apply. If the common
object does not necessarily involve a common intention, then
the substitution of Section 34 for Section 149 might result in
prejudice to the accused and ought not, therefore, to be
permitted. But if it does involve a common intention then the
substitution of Section 34 for Section 149 must be held to be
D.S.R.No.4 of 2018 & con. cases
a formal matter. Whether such recourse can be had or not
must depend on the facts of each case. The non-applicability
of Section 149 is, therefore, no bar in convicting the
appellants under Section 302 read with Section 34 IPC, if the
evidence discloses commission of an offence in furtherance of
the common intention of them all. ...... "
(underline supplied)
As is evident from the extracted passage, what is to be seen in
such cases is whether the common object alleged in the case
involves a common intention. If the common object does
involve a common intention, substitution of Section 34 for
Section 149 is only a formal matter. In other words, non-
applicability of Section 149 IPC is no bar in convicting the
accused with the aid of Section 34 IPC, if the evidence in the
facts and circumstances of each case discloses commission of
an offence in furtherance of the common intention of all of
them. It has to be mentioned in this context that if the common
object involves a common intention, in the light of the provision
contained in Section 464 of the Code, the accused cannot be
heard to contend that any prejudice has been caused to them
and therefore, non-framing of charge under Section 34 IPC is
also not of any consequence in the case on hand. In the light of
the evidence let in by the prosecution as referred to above and
D.S.R.No.4 of 2018 & con. cases
the various findings rendered, we are of the view that it can
certainly be held that the common object alleged involves a
common intention also. We, therefore, hold that accused 1 to 4
are liable to be punished for the offences committed by them
with the aid of Section 34 IPC.
44. The next question is as regards the offences
committed by accused 1 to 4. The learned counsel for accused
1 to 4 have not addressed any serious arguments as against
the finding rendered by the Court of Session that the accused
are guilty of the offences punishable under Sections 323, 324
and 427 IPC and there is no scope also to raise any argument
against the said finding in the light of the overwhelming
evidence in the case. The learned counsel for the second
accused, however, argued that Section 449 IPC would get
attracted only if house trespass is committed in order to
commit an offence punishable with death. According to the
learned counsel, in the case on hand, there is no material to
indicate that the house trespass, if any, committed by the
accused is for the purpose of committing an offence punishable
with death. There is force in this contention. In the light of the
D.S.R.No.4 of 2018 & con. cases
finding rendered by us that the object of the conspiracy was to
cause grievous hurt by dangerous weapons or means, the
offence punishable under Section 449 IPC is not attracted and
the offence attracted is only the offence punishable under
Section 450 IPC.
45. The question that survives is whether the
finding of the Court of Session that the accused are guilty of
the offence punishable under Section 302 IPC, is sustainable.
As noted, the cause of death of the victim was the injury
sustained by him on his head. Even though there is dispute as
to the number of blows the deceased suffered on his head, the
evidence on record establishes beyond reasonable doubt that
in the course of the occurrence, the first accused beat the
deceased on his head with MOI wooden log and the second
accused beat on the body of the deceased with MOIII wooden
log. We have already found that the accused never intended to
cause the death of the father of PW2 or to cause any bodily
injury to him, for the object of conspiracy was only to cause
grievous hurt to PW2 and to commit mischief. As noticed, the
evidence tendered by the ocular witnesses would show that
D.S.R.No.4 of 2018 & con. cases
accused 2 and 4 called PW2 out of his house and it was since
PW2 did not go out and instead walked back inside the house,
accused 1 to 4 followed PW2 and attacked him inside the
house. The evidence of the said witnesses would also show that
PW1 and the deceased stood in the way of the assailants while
they were attacking PW2 and vandalising the house and it was
at that point of time, the assailants attacked them. We take this
view also for the reason that, as already noticed, the version of
PW1 in the First Information Statement is that accused 1 to 4
who had barged into their house were attacking PW2 and it was
when the deceased intervened in the attack and pushed PW2
into a room so as to prevent the attack on PW2, the assailants
attacked the deceased. In the absence of any satisfactory
evidence to indicate that the assailants intended to cause the
death of the deceased or bodily injury as is likely to cause his
death, the only offence that is made out is the offence
punishable under Section 304 Part II, for while doing the act
found to have been committed, the accused should certainly be
presumed to have had the knowledge that they are likely, by
such act, to cause death, as provided for under the third limb of
D.S.R.No.4 of 2018 & con. cases
Section 299 IPC, especially having regard to the nature of
weapons used by them to attack the deceased, even though
the act cannot be said to be so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is
likely to cause death, so as to bring the act within the definition
of "murder" provided for under Section 300 IPC. We take this
view also for the reason that the expression "knowledge" used
therein is bare awareness and not the same thing as intention
that such consequences should ensue. It is apposite in this
context to refer to paragraphs 12 and 13 of Jai Prakash v.
State (Delhi Admn.), (1991) 2 SCC 32, which read thus :
"12. Referring to these observations, Division Bench of
this Court in Jagrup Singh case [(1981) 3 SCC 616 : 1981 SCC
(Cri) 768] observed thus: (SCC p. 620, para 7)
"These observations of Vivian Bose, J. have become
locus classicus. The test laid down in Virsa Singh
case [1958 SCR 1495 : AIR 1958 SC 465 : 1958 Cri LJ
818] for the applicability of Clause Thirdly is now
ingrained in our legal system and has become part of
the rule of law."
The Division Bench also further held that the decision in Virsa
Singh case [1958 SCR 1495 : AIR 1958 SC 465 : 1958 Cri LJ
818] has throughout been followed as laying down the
guiding principles. In both these cases it is clearly laid down
that the prosecution must prove (1) that the body injury is
present, (2) that the injury is sufficient in the ordinary course
of nature to cause death, (3) that the accused intended to
inflict that particular injury that is to say it was not accidental
or unintentional or that some other kind of injury was
intended. In other words Clause Thirdly consists of two parts.
The first part is that there was an intention to inflict the injury
D.S.R.No.4 of 2018 & con. cases
that is found to be present and the second part that the said
injury is sufficient to cause death in the ordinary course of
nature. Under the first part the prosecution has to prove from
the given facts and circumstances that the intention of the
accused was to cause that particular injury. Whereas the
second part whether it was sufficient to cause death is an
objective enquiry and it is a matter of inference or deduction
from the particulars of the injury. The language of Clause
Thirdly of Section 300 speaks of intention at two places and in
each the sequence is to be established by the prosecution
before the case can fall in that clause. The 'intention' and
'knowledge' of the accused are subjective and invisible states
of mind and their existence has to be gathered from the
circumstances, such as the weapon used, the ferocity of
attack, multiplicity of injuries and all other surrounding
circumstances. The framers of the Code designedly used the
words 'intention' and 'knowledge' and it is accepted that the
knowledge of the consequences which may result in doing an
act is not the same thing as the intention that such
consequences should ensue. Firstly, when an act is done by a
person, it is presumed that he must have been aware that
certain specified harmful consequences would or could follow.
But that knowledge is bare awareness and not the same thing
as intention that such consequences should ensue. As
compared to 'knowledge', 'intention' requires something more
than the mere foresight of the consequences, namely the
purposeful doing of a thing to achieve a particular end.
13. Kenny in Outlines of Criminal Law (17th edition of
page 31) has observed:
"Intention: To intend is to have in mind a fixed purpose
to reach a desired objective; the noun 'intention' in the
present connexion is used to denote the state of mind of a
man who not only foresees but also desires the possible
consequences of his conduct. Thus if one man throws another
from a high tower or cuts off his head it would seem plain that
he both foresees the victim's death and also desires it: the
desire and the foresight will also be the same if a person
knowingly leaves a helpless invalid or infant without
nourishment or other necessary support until death
supervenes. It will be noted that there cannot be intention
unless there is also foresight, since a man must decide to his
own satisfaction, and accordingly must foresee, that to which
his express purpose is directed.
Again, a man cannot intend to do a thing unless he
desires to do it. It may well be a thing that he dislikes doing,
but he dislikes still more the consequences of his not doing it.
D.S.R.No.4 of 2018 & con. cases
That is to say he desires the lesser of two evils, and therefore
has made up his mind to bring about that one."
Russell on Crime (12th edn. at page 41) has observed:
"In the present analysis of the mental element in crime
the word 'intention' is used to denote the mental attitude of a
man who has resolved to bring about a certain result if he can
possibly do so. He shapes his line of conduct so as to achieve
a particular end at which he aims."
It can thus be seen that the 'knowledge' as contrasted with
'intention' signify a state of mental realisation with the bare
state of conscious awareness of certain facts in which human
mind remains supine or inactive. On the other hand,
'intention' is a conscious state in which mental faculties are
aroused into activity and summoned into action for the
purpose of achieving a conceived end. It means shaping of
one's conduct so as to bring about a certain event. Therefore
in the case of 'intention' mental faculties are projected in a
set direction. Intention need not necessarily involve
premeditation. Whether there is such an intention or not is a
question of fact. In Clause Thirdly the words "intended to be
inflicted" are significant. As noted already, when a person
commits an act, he is presumed to expect the natural
consequences. But from the mere fact that the injury caused
is sufficient in the ordinary course of nature to cause death it
does not necessarily follow that the offender intended to
cause the injury of that nature. However, the presumption
arises that he intended to cause that particular injury. In such
a situation the court has to ascertain whether the facts and
circumstances in the case are such as to rebut the
presumption and such facts and circumstances cannot be laid
down in an abstract rule and they will vary from case to case.
However, as pointed out in Virsa Singh case [1958 SCR 1495 :
AIR 1958 SC 465 : 1958 Cri LJ 818] the weapon used, the
degree of force released in wielding it, the antecedent
relations of the parties, the manner in which the attack was
made that is to say sudden or premeditated, whether the
injury was inflicted during a struggle or grappling, the number
of injuries inflicted and their nature and the part of the body
where the injury was inflicted are some of the relevant
factors. These and other factors which may arise in a case
have to be considered and if on a totality of these
circumstances a doubt arises as to the nature of the offence,
the benefit has to go to the accused. In some cases, an
explanation may be there by the accused like exercise of right
of private defence or the circumstances also may indicate the
same. Likewise there may be circumstances in some cases
D.S.R.No.4 of 2018 & con. cases
which attract the first exception. In such cases different
considerations arise and the court has to decide whether the
accused is entitled to the benefit of the exception, though the
prosecution established that one or the other clauses of
Section 300 IPC is attracted. In the present enquiry we need
not advert to that aspect since we are concerned only with
scope of Clause Thirdly of Section 300 IPC."
Needless to say, accused 1 to 4 are guilty of the offences
punishable under Sections 323, 324, 427, 450 and 304 Part II
read with Sections 34 and 120B IPC. Section 111 IPC provides
that when an act is abetted and a different act is done, the
abettor is liable for the act done, in the same manner and to
the same extent as if he had directly abetted it, provided the
act done was a probable consequence of the abetment and was
committed with the aid of the conspiracy. In the case on hand,
the act committed on the deceased can only be regarded as a
probable consequence of the conspiracy. As such, the sixth
accused is guilty of the offence punishable under Section 120B
IPC, for the offences punishable under 323, 324, 427, 450 and
304 Part II IPC.
46. Let us now determine the sentences to be
imposed on the accused for the offences for which they are
found guilty. Accused 1 to 4 were sentenced to undergo
D.S.R.No.4 of 2018 & con. cases
rigorous imprisonment for one month each for the offence
punishable under Section 323 IPC, rigorous imprisonment for
one year each for the offence punishable under Section 324
IPC, rigorous imprisonment for six months each for the offence
punishable under Section 427 IPC. We do not find any reason to
interfere with the sentences imposed on the accused for the
said offences.
47. Coming to the offences committed by accused
1 to 4 under Sections 450 and Sections 304 Part II and the
offence committed by the sixth accused under Section 120B, it
is necessary to note that accused 1 to 4 had no personal
animosity towards the deceased and the members of his family
and there was absolutely no reason for them to cause grievous
hurt to the deceased and the members of his family as also to
vandalise his house. As found, accused 1 to 4 committed
serious crimes for which they are found guilty at the behest of
the sixth accused. It is seen from the evidence that the sixth
accused is a person who maintains an inflated sense of self-
importance and superiority and has a tendency to react
aggressively to criticism and opposition, viewing any challenge
D.S.R.No.4 of 2018 & con. cases
to his authority as a personal affront. His conduct which led to
the crime exemplifies sheer intolerance and gross abuse of
authority over trivial matters. Such behaviour undermines the
democratic principles of peaceful political discourse and mutual
respect. No individual, regardless of position, is above the law,
and inciting violence for political gain, according to us, shall be
met with utmost severity while imposing sentences in cases of
this nature to preserve social harmony and justice, for harsh
punishment would not only serve as a deterrent, but would also
give a message to the society that instigators are equally, if not
more, culpable than the individuals who carry out the crime. In
the circumstances, according to us, the appropriate
proportionate sentence to be awarded to accused 1 to 4 for the
offence punishable under Section 450 IPC would be rigorous
imprisonment for a period of five years each. Likewise,
according to us, the appropriate proportionate sentence to be
awarded to accused 1 to 4 for the offence punishable under
Section 304 Part II IPC and to the sixth accused for the offence
punishable under Section 120B IPC is rigorous imprisonment for
a period of ten years each.
D.S.R.No.4 of 2018 & con. cases
48. In the result, criminal appeals and the death
sentence reference are disposed of on the following terms:
(a) The conviction of accused 1 to 4 for offences
punishable under Sections 143, 147 and 148 IPC is set aside,
their conviction for the offences punishable under Sections 323,
324 and 427 IPC read with Section 149 IPC is altered to
conviction under Sections 323, 324 and 427 IPC read with
Section 34 IPC, their conviction for the offence punishable
under Section 449 IPC read with Section 149 IPC is altered to
conviction under Section 450 IPC read with Section 34 IPC, their
conviction for the offence punishable under Section 302 IPC
read with Sections 149 IPC is altered to conviction under
Section 304 Part II IPC read with Sections 34 IPC and their
conviction under Section 120B IPC is affirmed.
(b) The conviction of the fifth accused for offences
punishable under Sections 120B, 143, 147, 148, 323, 324, 427,
449 and 302 read with Section 149 IPC is set aside and he is
acquitted of all the charges.
D.S.R.No.4 of 2018 & con. cases
(c) The conviction of the sixth accused for offences
punishable under Sections 143, 147, 323, 324, 427, 449 and
302 read with Section 149 is set aside and he is convicted
under Section 120B for the offences punishable under Sections
323, 324, 427, 450 and 304 Part II IPC.
(d) The sentence passed against accused 1 to 4 for
the offences punishable under Sections 323, 324 and 427 IPC is
confirmed and they are sentenced to undergo rigorous
imprisonment for 5 years each and to pay a fine of Rs.10,000/-
each and in default of payment of fine to undergo simple
imprisonment for 1 year for the offence punishable under
Section 450 IPC. They are also sentenced to undergo rigorous
imprisonment for 10 years each and to pay a fine of
Rs.25,000/- each and in default of payment of fine to undergo
simple imprisonment for 1 year for the offence punishable
under Section 304 Part II IPC. They are imposed the same
sentences for the offences committed by them under Section
120B IPC also.
D.S.R.No.4 of 2018 & con. cases
(e) The sentence passed against the sixth accused
for the offences punishable under Sections 323, 324 and 427 is
confirmed. He is also sentenced under Section 120B for the
offence punishable under Section 450 IPC to undergo rigorous
imprisonment for 5 years and to pay a fine of Rs.10,000/- and
in default of payment of fine to undergo simple imprisonment
for 1 year. He is also sentenced under Section 120B for the
offence punishable under Section 304 Part II IPC to undergo
rigorous imprisonment for 10 years and to pay a fine of
Rs.25,000/- and in default of payment of fine to undergo simple
imprisonment for 1 year.
(f) The substantive sentences of imprisonment of
the accused shall run concurrently.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
M.B.SNEHALATHA, JUDGE.
ds/Mn/YKB
